Terms of Service
These terms of service (the “Terms”) apply for the MiDOG™ Bacterial and Fungal Testing Services (the “Service”) when you use the MiDOG™ web site or other mobile application (collectively the “Site”) operated by MiDOG LLC. These Terms are a legal contract between you and MiDOG™, LLC (referred to as “MiDOG™”, also referred to as “We”, or “US”, herein). By checking the box when checking out for your order of the Service or otherwise ordering the Service you agree to these Terms.
2. Ordering a Service
You promise that you are of legal age when ordering the Service and agree and acknowledge to this requirement for ordering the Service. Further, you agree to provide a sample (“Sample”) under your order and that we own the Sample material (e.g. “DNA”, “RNA”, or “protein”) and data generated therefrom once it is received. Once you submit your order for the Service, we will not cancel the order or refund your fee. The fee we charge you is a processing fee, which we do not refund even if we cannot complete the Service for any reason; for example due to sample or processing problems or issues, or if you change your mind immediately after ordering, delay using the kit more than six months, or if the report (“Report”) we provide to you is not to your liking. This is true regardless of how soon after submission you might attempt to request cancellation of the order. Therefore, please review ALL information carefully prior to ordering the Service via the Site. You may order for others such as for family members or friends but each such individual must create their own account.
3. Sample Requirements
We provide you one sample collection kit including instructions for use for obtaining skin swabs from a Dog (i.e. “Canis familiaris”; collectively, the “Sample”) based on your selection on the Site. This Service is only for Dogs and not for any other species, however similar evolutionarily. This Sample kit is designed to provide for enough sample material (“DNA”) for processing and performing the MiDOG™ the Service one time. If your Sample does not provide enough DNA we will notify you and send one replacement Sample kit for a second attempt to process your Sample. If the replacement Sample kit does not provide enough DNA for performing the Service you agree this terminates the order and agree that must pay for any replacement Sample kit or re-order paying for Service again.
4. Delivery of Report
We will try to process your Sample and estimate delivery of your Report to you within five business days after receiving the sample at our laboratory 17062 Murphy Ave. Irvine, California. The Report will comprise three items: 1) A panel of potential pathogens detected in the skin or ear sample and how their numbers compare to clinically healthy dog skin; 2) The eight most abundant bacterial and fungal organisms that are detected in your dog’s sample and are compared to other clinically healthy dog skin or ear samples; 3) The total microbial diversity is summarized and compered to other clinically healthy dogs. An exemplary Report can be viewed clicking on the link at the bottom of this page. This five day period of time to deliver the Report may change due to our order volume, any issues with our platform, or other reasons. By ordering the Service you acknowledge and agree that the time for us to deliver the Report may vary and may exceed our estimated five days to deliver the Report.
6. Your Representations
By ordering the Service and using the Site or otherwise you agree, acknowledge and promise the following is true and that you have the legal authority in the jurisdiction in which you reside to make these statements:
6.1 You understand and acknowledge that the Service is not intended to be health information or medical data or to be used to screen, diagnose, treat, prevent or assess risk of any disease or condition.
6.2 You give permission for MiDOG™ and its research laboratory (“Research Laboratory”) or other associates to process your Sample and perform the MiDog™ Service on the Sample and to use the Sample and data generated therefrom for any reason per these Terms.
6.3 You represent that you are an individual person of legal age to enter into contracts and are authorized to order the Service.
6.4 You understand that by providing your Sample processed for the Service that you do not acquire any rights to any intellectual property of any kind in the Service or improvements made to the Service or new Services or products made therefrom.
6.5 You promise that you are not a covered entity or business associate of a covered entity as defined under federal law or an insurance company or employer seeking information on a policy holder or employee or alternately you consent or have obtained consent to receive the Report for your Dog.
6.6 You promise that the information that you provide for the Service is accurate to the best of your knowledge and that the Sample is your Dog’s sample or that you have consent to use the Sample.
7. Copyright, Trademark and Intellectual Property
All materials on the Site, including but not limited to written content, images, illustrations, downloads, audio clips, and video clips ("Material") are owned or controlled by MiDOG™ and are protected by worldwide copyright laws (as well as trademark and other applicable intellectual property laws). You may download Material only for your personal, non-commercial purposes (viewing, reading and retaining for reference) but no modification or further reproduction of the content is permitted. The content may otherwise not be copied or used in any way. UNAUTHORIZED COPYING, REPRODUCTION, REPUBLISHING, UPLOADING, DOWNLOADING, POSTING, TRANSMITTING, DISTRIBUTION, OR DUPLICATING OF ANY OF THE MATERIAL (WHETHER FOR COMMERCIAL OR NON-COMMERCIAL PURPOSES) IS PROHIBITED. All rights in the product names, company names, trade names, logos, service marks, trade dress, slogans, product packaging, and designs of the Services, whether or not appearing in large print or with the trademark symbol, belong exclusively to MiDOG™ or its licensors and are protected from reproduction, imitation, dilution, or confusing or misleading uses under national and international trademark and copyright laws. The use or misuse of these trademarks or any materials, except as permitted herein, is expressly prohibited, and nothing stated or implied on the Services confers on you any license or right under any patent or trademark of MiDOG™, or its associates (e.g. Research Laboratory or other associate), or any third party.
You may not access or use, or attempt to access or use, the Services to take any action that could harm us or any third party, interfere with the operation of the Services, or use the Services in a manner that violates any laws.
To register for the Service, you will create login credentials by providing an email address to us and by selecting a username and password. You also provide us certain information during the registration process, which you agree to keep accurate and updated. Each login is for a single user only. You are not allowed to share or disclose your login credentials with any other user or person. We may cancel or suspend your access to the Service and Site if you share your credentials. You will be responsible for all usage and activity on your account, including use of the account by any third party authorized by you to use your login credentials, and for all charges for any goods or services. You are also responsible for all statements made or materials posted under your account, including liability for harm caused by such statements or materials. You may not transfer, sell, or otherwise assign your rights or obligations under these Terms. You must be of legal age to use the Service and Site. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your account, at our sole discretion, and we may refer you to appropriate law enforcement agencies.
10. Third Party Content
The Service may contain third-party owned content and links to other websites (“Linked Sites”). We do not endorse, sponsor, recommend, or otherwise accept responsibility for any Linked Sites. In addition, Linked Sites are not under the control of MiDOG™. MiDOG™ is not responsible for the content or privacy practices of the Linked Sites.
11. Disclaimer of Warranties
THE SERVICE IS PROVIDED “AS IS.” WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS, AND INACCURACIES IN THE SITE FROM TIME TO TIME. IF YOU RELY ON THE SERVICE AND ANY MATERIALS MADE AVAILABLE THROUGH THE SERVICES, YOU DO SO SOLELY AT YOUR OWN RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MIDOG DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, (C) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE SERVICE, (D) WARRANTIES RELATING TO THE ACCURACY, RELIABILITY, CORRECTNESS, TIMELINESS OR COMPLETENESS OF DATA MADE AVAILABLE ON THE SERVICE OR OTHERWISE BY MIDOG, INCLUDING ANY ADVICE, OPINION, STATEMENT, OR OTHER MATERIAL OR DATA DISPLAYED, UPLOADED OR DISTRIBUTED IN THE SERVICE OR AVAILABLE THROUGH THE SITE, AND WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS BY THE MIDOG OR ANY THIRD PARTY. FURTHER, THERE IS NO WARRANTY THAT THE SERVICE WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. MIDOG MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED (A) THAT THE INFORMATION PROVIDED THROUGH THE SERVICE WILL BE FREE FROM ERROR, OMISSION, INTERRUPTION, DEFECT, OR DELAY IN OPERATION, OR FROM TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, (B) THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION (C) THAT DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED, OR (D) THAT THE CONTENT ON THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY INFORMATION ON THE SERVICES IS SUBJECT TO CHANGE WITHOUT NOTICE, AND THE MIDOG DISCLAIMS ALL RESPONSIBILITY FOR THE SERVICE. WE RESERVE THE RIGHT TO CORRECT ANY ERRORS OR OMISSIONS IN THE SERVICE. 12. Limitation of Liability. IN NO EVENT WILL THE MIDOG™ OR ITS RESEARCH LABORATORY, ASSOCIATES OR AFFILIATES OR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF YOUR ACCESS, USE, MISUSE, OR INABILITY TO USE THE SERVICE OR ANY LINKED SITES, OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, TRANSMISSION, COMPUTER VIRUS, OR LINE OR SYSTEM FAILURE. THESE LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, INTELLECTUAL PROPERTY INFRINGEMENT, PRIVACY OR ANY OTHER BASIS, EVEN IF THE MIDOG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, MIDOG’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You shall indemnify and hold harmless MiDOG™, including its officers, directors, employees, and agents including its Research Laboratory associate and other associates from any and all liability, claims, loss, damages, expenses, or judgments (including court or arbitration costs and attorneys’ fees) arising from an act or omission or representation of you for violation of the Terms or use of the report and data generated from the Service performed by MiDOG™. We reserve the right to take over the exclusive defense of any claim for which we are entitled to indemnification under this Section. In such event, you shall provide us with such cooperation as is reasonably requested by us.
14. Governing law and Dispute Resolution
This Agreement shall be construed and interpreted in accordance with the laws of the state of California without regard to conflict of law principles. Both parties to this Agreement agree that disputes may arise from time to time with regard to either party’s rights or obligations under this Agreement and further agrees to negotiate in good faith for at least sixty (60) days to seek resolution of any such dispute before third parties may be asked to interpret this Agreement for any such dispute. The parties also agree that all such remaining disputes shall be resolved by final and binding arbitration by a single arbitrator agreed to by the parties or designated by the American Arbitration Association (“AAA”) by its rules in effect on the effective date of this Agreement. Any arbitration under this Agreement shall be in Irvine or Costa Mesa, California. Except as required by law, the parties, their representatives, other participants, and the arbitrator shall hold the existence, content and result of the arbitration in confidence. Nothing in this clause shall be construed to preclude a party from seeking injunctive relief to protect its rights pending arbitration. A request by a party to a court for such injunctive relief shall not be deemed a waiver of the obligation to arbitrate. By using the Service, you waive any claims that may arise under the laws of other states, countries, territories or jurisdictions.
MiDOG™ may terminate this agreement for any reason at any time. MiDOG™ reserves the right, in its sole discretion, to restrict, suspend, or terminate your access to and use of the Service, with or without prior notice. Otherwise applicable sections of the Terms shall survive termination. In addition to any termination rights, we reserve the right to enforce and prosecute any violations of these Terms.
No Waiver. The failure of MiDOG™ to enforce any provisions of the Terms or to respond to a breach by you or other parties shall not in any way waive its rights to enforce subsequently any terms or conditions of the Terms or to act with respect with similar breaches. You agree that no joint venture, partnership, employment, or agency relationship exists between you and MiDOG™ as a result of these Terms or your access to and use of the Services. Unless otherwise specified herein, the Terms constitute the entire agreement between you and MiDOG™ and govern your use of the Service and Site. If any portion of the Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.