CubexPMP Terms of Service
Effective Date: July 20, 2020
These Terms of Service (the “Terms”) govern your use of the CubexPMP Solution and associated tools made available at www.cubexpmp.com or any other Internet site provided (collectively, the “Service”) by Cubex LLC (“Cubex,” “we” and “us”). As used in these Terms, “you” refers to you (an individual person) if you are using the Service in your individual capacity, or to your company or other entity if you are using the Service on behalf of such company or entity. Your use of the Service indicates that you agree on behalf of yourself, or the company or entity that you represent, to be bound by these Terms. If you are an individual accepting these Terms on behalf of your company or other entity, you represent and warrant that you have the authority to bind your company or entity to these Terms. YOU AGREE THAT THESE TERMS ARE ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE SERVICE.
We reserve the right to modify these Terms prospectively at any time. We will post any updates to these Terms on our website, and will indicate the date the Terms were last revised. Your continued use of the Service after any such change constitutes your acceptance of the updated Terms.
PLEASE NOTE THAT ANY DISPUTE OR CLAIM RELATED TO THESE TERMS OR ARISING OUT OF YOUR ACCESS TO OR USE OF THE PLATFORM MUST BE RESOLVED BY ARBITRATION ON AN INDIVIDUAL BASIS, AND MAY NOT BE ARBITRATED OR OTHERWISE PURSUED AS A CLASS ACTION. PLEASE SEE SECTION 15 BELOW.
- Overview of the Service.
- The Service provides you an online means for you to report, monitor and manage veterinary prescriptions issued or contemplated to be issued to your veterinary clients. All information concerning your veterinary clients that you upload to the Service through your account is collectively referred to in these Terms as “Client Information”.
- We reserve the right, at any time, to modify, suspend, or discontinue the Service, or any part thereof, upon thirty (30) days’ prior written notice to you. You agree that Cubex will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service, or any part thereof.
- You acknowledge and agree that Cubex’s sole obligation to provide you with any support or maintenance in connection with the Service shall be limited email and/or electronic communications between the hours of 6 A.M. to 6 P.M., Mountain Standard Time (MST), Monday to Friday, exclusive of holidays, via the following email address: firstname.lastname@example.org
- In order to access or use the Service, you must first register with the Service and set up a user account. During the user registration process, you will be required to agree to these Terms.
- The Service is intended solely for individuals who are at least 18 years of age or older and who are either: (a) a licensed veterinarian or (b) an employee of a veterinary facility managed by a licensed veterinarian who has been authorized to use the Service. Any registration on or use of the Service by any individual who does not meet the foregoing requirements is not authorized to register for or use the Service. By using the Service, you represent and warrant that you meet the foregoing requirements.
- You agree to provide us with true, accurate and complete information about you, the company or entity that you represent (if applicable) and the Authorized Facility requested in the registration process. You also agree to update such information promptly as necessary to keep it current and accurate.
- You are responsible for maintaining the confidentiality of your account login information and are solely responsible for all activity under your account. If you are an individual using the Service on behalf of a company or entity, you are authorized to share your account login information only to other employees of such company or entity who work at the Authorized Facility and who: (a) have been authorized by such company or entity to use the Service, (b) maintain the confidentiality of such login information and (c) accept these Terms. Your use of the Service, including on behalf of the company or entity that you represent, is strictly limited to the Authorized Facility. You agree to immediately notify us of any actual or suspected unauthorized use of or access to your account. We are not responsible for any losses or damages arising from your failure to maintain the confidentiality of your account login information or to report any actual or suspected breach of your account.
- Financial Terms.
- Unless you are subject to a separate written agreement with Cubex governing your fees to access the Service, the Service is currently made available in accordance with the fees posted on the CubexPMP Solution website (available here), which may include special promotional or trial pricing (the “Fees”). If you are subject to a separate written agreement with Cubex governing your fees to access the Service, the fees specified in such separate written agreement shall be your Fees for the purposes of these Terms. Fees are assessed on a monthly basis, in advance.
- After any trial period applicable to your use of the Service, you will be assigned to a usage bracket (e.g., CubexPMP 50, CubexPMP 100, CubexPMP Unlimited) based upon your monthly average of transactions that you process through the Service during such trial period and you will be assessed the monthly fee that is applicable to such usage bracket following such trial period.
- You are responsible for any sales taxes, use taxes, or other taxes applicable to your use of the Service.
- You may cancel your subscription to the Service at anytime. Your cancelation will be effective upon, and your access to the Service will continue until, the last day of the fiscal month when we receive your cancelation notice and for which you have paid Fees for Services. We may disconnect your user account from the Service following your subscription termination.
- Your Responsibility for Applicable Reporting Laws.
You expressly acknowledge and agree that you are solely responsible for compliance with any applicable laws, rules or regulations (federal, state, local or otherwise) applicable to you and/or your business, including, without limitation, laws, rules or regulations concerning the reporting, monitoring or management of veterinary prescriptions issued by you. You further acknowledge and agree that the Service is provided solely for your convenience and that Cubex does not represent or warrant in any manner that the Service is compliant with any applicable laws, rules or regulations including, without limitation, laws, rules or regulations concerning or relating to any requirements to report, monitor or manage veterinary prescriptions and, accordingly, Cubex shall have no liability whatsoever with respect to such matters.
- Client Information.
- You acknowledge and agree that you have secured in writing all authorizations to upload all of Client Information to the System and to provide Client Information to us. You further acknowledge and agree that all Client Information uploaded to the System is complete and accurate and that you assume all risks associated with any incompleteness or inaccuracy of Client Information. You may not upload to the Service any Client Information for which you do not have all necessary rights, consents or permissions needed to upload such Client Information to the Service.
- You authorize Cubex to store copies of any or all of Client Information as we deem necessary in order to provide the Service to you. However, we are not obligated to back up any Client Information and you are solely responsible for creating backup copies of Client Information.
- You hereby grant to Cubex the following licenses to Client Information:
- a non-exclusive, transferable, sublicensable, fully‑paid‑up, royalty‑free, worldwide, and limited license, commencing on the date you upload Client Information to the Service and continuing until you terminate your subscription to the Service to use, copy and transmit such Client Information to provide the Service for you; and
- a non-exclusive, unlimited, transferable, sublicensable, irrevocable, fully‑paid‑up, royalty-free, worldwide, and perpetual license, commencing on the date upload Client Information to the Service to anonymize, de‑identify, and/or aggregate such Client Information (“Anonymized Client Information”) and use, copy, publicly perform, publicly display, prepare derivative works of and distribute and otherwise exploit such Anonymized Client Information in Cubex’s sole discretion.
- We do not assert any ownership over Client Information; rather, as between Cubex and you, subject to the licenses granted in these Terms, you retain full ownership of all of Client Information and any intellectual property or other proprietary rights therein. NOTWITHSTANDING THE FOREGOING, UPON THE EFFECTIVE DATE OF YOUR TERMINATION OF YOUR SUBSCRIPTION TO THE SERVICE, ALTHOUGH THE LICENSE GRANTED BY YOU TO CUBEX UNDER SUBSECTION (a) OF SECTION 3 ABOVE WILL IMMEDIATELY TERMINATE WITH RESPECT TO SUCH CLIENT INFORMATION (EXCEPT THAT WE MAY RETAIN ARCHIVED COPIES OF SUCH CLIENT INFORMATION FOR A REASONABLE PERIOD OF TIME FOR LEGAL, ACCOUNTING, AND SIMILAR PURPOSES), THE LICENSE GRANTED BY YOU UNDER SUBSECTION (b) OF SECTION 6.3 ABOVE WILL SURVIVE INDEFINITELY.
- User Conduct.
- You agree not to upload to the Service any of the following:
- any computer viruses, worms, or any software intended to damage or alter a computer system or data; or
- any confidential, restricted, or private information of any third party unless you have received all written authorizations to disclose such information.
- In using the Service, you also agree not to do any of the following:
- impersonate any other person or entity in your account profile, or falsely state or otherwise misrepresent yourself or your affiliation with any other person or entity in your account profile;
- use or attempt to use another user’s account;
- attempt to gain unauthorized access to the Service, other computer systems or networks connected to or used to deliver the Service, through password mining or other means;
- conduct any activities that could damage, disable, overburden or impair the Service, including but not limited to introducing software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Service;
- harvest, collect, gather, or assemble information or data regarding other users, including email addresses, without their consent; or
- use the Service in a way that is not in compliance with any applicable law, rule or regulation.
- Intellectual Property Rights to the Service.
- Subject to the terms and conditions of these Terms, the Service and all content in the Service, other than Client Information you upload to the Service, are the intellectual property of Cubex, with all rights reserved.
- Subject to the terms and conditions of these Terms, Cubex grants you a non-exclusive, revocable, limited license to access and use the Service solely for the purposes set forth in these Terms. Any use of the Service other than as specifically authorized in these Terms, without the prior written permission of Cubex, is strictly prohibited and will automatically terminate the foregoing license granted to you. Also, this license will terminate upon any termination of the Terms or upon any suspension, termination or cancellation of your account.
- You agree not to do any of the following:
- License, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service;
- Reverse engineer, decompile, disassemble, translate, modify, alter or otherwise change or make derivative works of the Service, or any part thereof;
- Attempt to derive the source code or structure of the Service, or any part thereof;
- Remove from the Service, or alter, any trademarks, trade names, logos, patent or copyright notices, or other notices or markings; or
- Distribute, sublicense or otherwise transfer access to the Service to others.
- If you provide us any feedback or suggestions, ideas, improvements, modifications, error identification or other information relating to the Service (“Feedback”), you hereby grant to Cubex a non-exclusive, perpetual, irrevocable, non-terminable, worldwide, royalty-free, fully-paid-up, sublicensable right and license to copy, distribute, display and create derivative works of and otherwise use such Feedback without restriction, including to improve the Service and to develop, market, offer, sell and provide other products and services.
All trademarks, service marks, logos and trade names associated with Cubex and/or the Service, whether registered or unregistered, are proprietary to Cubex or to other companies where so indicated. Such marks may not be used, including as part of others’ trademarks or domain names, in connection with any product or service in any manner that is likely to cause confusion, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Cubex.
- The Service may be temporarily unavailable from time to time for maintenance or other reasons. Cubex assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications. Cubex is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email on account of technical problems or traffic congestion on the Internet or on the Service or combination thereof, including injury or damage to your or to any other person’s computer, mobile device, or other hardware or software, related to or resulting from using or downloading materials in connection with the Service. Under no circumstance will Cubex be responsible for any loss or damage resulting from your use of the Service, or from any Client Information uploaded to the Service.
- YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE FOREGOING EXCLUSIONS MAY NOT APPLY TO YOU IF THE LAW OF SUCH JURISDICTION APPLIES TO YOU AND THESE TERMS.
- CUBEX DOES NOT GUARANTEE ANY SPECIFIC RESULT FROM USE OF THE SERVICE, AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICE MEETS THE REQUIREMENTS OF ANY APPLICABLE LAWS, RULES OR REGULATIONS, INCLUDING, WITHOUT LIMITATION, LAWS, RULES OR REGULATIONS CONCERNING OR RELATING TO ANY REQUIREMENTS TO REPORT, MONITOR OR MANAGE VETERINARY PRESCRIPTIONS.
- Limitations on Liability.
- IN NO EVENT WILL CUBEX OR ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, PARTNERS OR AGENTS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR OTHER SPECIAL OR INDIRECT DAMAGES, OR FOR ANY LOST BUSINESS PROFITS, OR FOR PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING FROM THESE TERMS OR YOUR USE OF THE SERVICE, EVEN IF CUBEX IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CUBEX’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS OR YOUR ACCESS TO OR USE OF THE SERVICE IS LIMITED TO THE AMOUNTS YOU HAVE PAID TO CUBEX PURSUANT TO THESE TERMS FOR THE SIX (6) MONTH‑PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH DAMAGES.
- SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IF THE LAW OF SUCH JURISDICTION APPLIES TO YOU AND THESE TERMS.
You agree to indemnify and hold harmless Cubex, its affiliates and their respective directors, officers, agents, contractors, partners and employees, from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with any third party claims, actions or proceedings concerning: (i) your use of the Service; (ii) Client Information; (iii) your violation of these Terms; or (iv) your violation of any applicable law, rule or regulation. Cubex has the sole right to defend and control any matter for which you are required to indemnify us and you agree to take all necessary action to cooperate with our defense of these claims. We will use reasonable efforts to notify you of any such claim, action or proceeding in a timely manner.
- Governing Law.
These Terms and your use of the Service shall be governed exclusively by, and construed in accordance with, the internal laws of the State of Arizona without reference to the choice of law or conflicts of law principles thereof, and all claims relating to or arising out of these Terms, or the breach thereof, or your use of the Service, whether sounding in contract, tort or otherwise, shall likewise be governed exclusively by the laws of the State of Arizona without reference to the choice of law or conflicts of law principles thereof.
- Binding Arbitration and Class Action Waiver.
- You and Cubex agree to submit all disputes, claims, or controversies of any kind arising out of or related to these Terms and/or the Service for resolution exclusively through binding and final arbitration, instead of through court proceedings. You should review this arbitration provision (this Section 15) carefully; it limits your and our ability to litigate claims in court. THIS AGREEMENT TO ARBITRATE MEANS THAT YOU AND WE WAIVE ANY RIGHT TO A TRIAL BY JURY, WHETHER ON AN INDIVIDUAL OR A CLASS BASIS.
- Arbitration is usually an informal proceeding in which disputes are decided by one or more neutral arbitrators who receive the evidence at a hearing and then issue a binding ruling in the form of an award. You and we understand that in an arbitration, discovery is more limited than in a court, and review by courts is very limited.
- If either you or we intend to seek arbitration, such party must first send to the other party, by certified mail, a written Notice of Dispute (a “Notice”). Any Notice that you send to us must be addressed to Cubex LLC, 3801 E. Roeser Rd #16, Phoenix, AZ 85040, Attn: Legal (the “Notice Address”). Any Notice that we send to you will be sent to the contact information that we have in your account. Any Notice must (i) describe the nature and basis of the dispute, claim, or controversy and (ii) set forth the specific relief sought. If you and we do not reach an agreement to resolve the dispute, claim, or controversy within 30 days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or we shall not be disclosed to the arbitrator until after the arbitrator renders an award.
- You and we agree, upon written demand made by you or us, to submit to binding arbitration of any and all disputes, claims, and controversies between you and us, whether based on statute, regulation, constitution, common law, equity, or any other legal basis or theory, and whether pre-existing, present, or future, that arise out of or relate to these Terms and/or the Service, including contract disputes, tort claims, fraud claims, fraud-in-the-inducement claims, misrepresentation claims, statutory claims and/or regulatory claims arising out of or relating to these Terms and/or the Service (including, to the fullest extent permitted by applicable law, relationships with third parties who are not parties to these Terms or this arbitration provision), or the scope or enforceability of these Terms, including the determination of the applicability of this agreement to arbitrate, and/or any other relationship or dispute between you and us (each a “Claim”, and collectively the “Claims”). Any and all Claims shall be submitted for binding arbitration in accordance with the applicable (consumer or commercial, depending on whether you are an individual or a company) Arbitration Rules of the American Arbitration Association (the “AAA Rules”), as amended, in effect at the time arbitration is initiated. In the event of any inconsistency between this arbitration provision and the AAA Rules, such inconsistency shall be resolved in favor of this provision.
- After the 30-day period specified in Section 3 above has expired, either you or we may initiate arbitration by giving written notice of the intention to arbitrate to the other party and by filing notice with the AAA in accordance with the AAA Rules in effect at the time the notice is filed. We may be given notice at the Notice Address specified in Section 15.3 above. If you are an individual and decide to initiate arbitration, you agree to pay the initiation fee of $200 (or the amount otherwise required by the AAA Rules), and we agree to pay the remaining arbitration initiation fee and any additional deposit required by AAA to initiate your arbitration, and we will pay the costs of the arbitration proceeding, including the arbitrator’s fees; however, other fees, such as attorney’s fees and expenses of travel to the arbitration, shall be paid in accordance with the AAA Rules and applicable law. If you are a company and decide to initiate arbitration, you and we will share the foregoing costs equally. We will pay all costs associated with any arbitration that we commence.
- A single, neutral arbitrator selected in accordance with the AAA Rules shall decide all Claims. The arbitrator shall be an active member in good standing of the bar for any state in the continental United States and shall be either actively engaged in the practice of law for at least five years or a retired judge.
- You and we agree that the arbitrator shall: (i) limit discovery to non-privileged matters directly relevant to the Claim; (ii) grant only relief that is based upon and consistent with substantial evidence and applicable substantive law; (iii) have authority to grant relief only with respect to the Claims asserted by or against you and us individually; and (iv) provide a written statement stating the disposition of each Claim and a concise written explanation of the basis for the award and shall make specific findings of fact and conclusions of law to support any arbitration award. Unless inconsistent with applicable law, and except as otherwise provided herein, each party shall bear the expense of its respective attorney, expert, and witness fees, regardless of which party prevails in the arbitration. Any arbitration proceedings shall be conducted in the federal judicial district of your residence, and you will be given the opportunity to attend the proceeding and be heard. If the Claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing with the arbitrator, or by an in-person hearing in accordance with the AAA Rules.
- The arbitrator’s decision will be final and binding upon the parties and may be enforced in any federal or state court that has jurisdiction. You and we agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
- Demand for arbitration under this arbitration provision must be filed before the date when any judicial action upon the same Claim would be barred under any applicable statute of limitations; otherwise, the Claim is also barred in arbitration. Any dispute as to whether any statute of limitations, estoppel, waiver, laches, or other doctrine bars the arbitration of any Claim shall be decided by arbitration in accordance with this provision.
- Neither you nor Cubex may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. The Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or Cubex’s individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. Accordingly, you and we agree that the AAA Supplementary Rules for Class Arbitrations do not apply to our arbitration. This arbitration provision and the procedures applicable to the arbitration contemplated by this provision are governed by the Federal Arbitration Act, notwithstanding any state law that may be applicable.
- This arbitration agreement does not preclude you or us from seeking action by federal, state, or local government agencies. You and we also have the right to exercise self-help remedies, such as set-off, or to bring qualifying claims in small claims court. In addition, you and we retain the right to apply to any court of competent jurisdiction for provisional or ancillary relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with any of these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in this provision.
- A court may sever any portion of this Section 15 that it finds to be unenforceable, except for the prohibitions on any Claim being handled on a class or representative basis, and the remaining portions of this arbitration provision will remain valid and enforceable. No waiver of any provision of this Section 15 will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of these Terms.
- THIS SECTION 15 LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN THE AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR CUBEX WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.]
These Terms constitute the entire agreement between you and Cubex regarding the Service, superseding any prior agreements between you and Cubex relating thereto. The failure of Cubex to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision in that or any other instance. If any provision of these Terms is held invalid, the remainder of these Terms shall continue in full force and effect. If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
If you have any questions regarding these Terms, please contact us by sending an email to email@example.com.