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Hill's to Home Service Agreement
Last Updated November 19, 2018
These Terms of Service ("Terms of Service") set forth the terms and conditions upon which Hill’s Pet Nutrition Sales, Inc. and its affiliates (“we”, “us” and "Hill’s") offers you, our third party end-users (“you”), access to Hill’s proprietary Hill’s to Home service whereby you purchase Hill’s products from the entity or individual that recommended the Hill’s products and whose name appears on the invoice (“Your Vet”) and is fulfilled by Hill’s (the "Service"). By clicking “I Agree” or by accessing the Service you agree to be bound by these Terms. If you do not agree to these Terms of Service, do not access or use the Services. This is a legally enforceable contract.
You hereby authorize Hill’s to share your personal data with Your Vet and authorize Your Vet to share your personal data with Hill’s. You agree to receive communication from Hill’s about products, offers and programs, until you notify Hill’s otherwise.
1. LICENSE; RESERVATION OF RIGHTS
1.1 Limited License to Use the Service. Subject to your compliance with the terms and conditions of these Terms of Service, Hill’s hereby grants to you a limited, personal, non-exclusive, non-transferable, license to access the Service solely for your own personal purposes. Except for the licenses and rights expressly granted under these Terms of Service, no licenses or rights are granted by Hill’s to you hereunder, by implication, estoppel or otherwise. All such other licenses and rights are reserved unto Hill’s.
1.2 Other License Restrictions. You shall not (i) copy or modify the Service for any purpose; (ii) reverse-engineer, decompile, modify, translate, disassemble or discover the source code for all or any portion of the Service; (iii) distribute, disclose, market, rent, lease or otherwise transfer the Service to any other person or entity; or (iv) use the Service or permit, enable or assist a third party, to create competing products or services.
1.3 Intellectual Property Rights. Hill’s retains all intellectual property rights in and to the Service and all related documentation interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights), including, but not limited to, any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, material and documentation. Except for rights specifically provided in these Terms of Service, you hereby assigns to Hill’s all other intellectual property rights it may now or hereafter possess in the Service and related documentation, and all derivative works and improvements thereof, and agrees to execute all documents, and take all actions, that may be necessary to confirm such rights. You also agrees to retain all proprietary
marks, legends and patent and copyright notices that appear on the Service and any related documentation delivered to you by Hill’s and all whole or partial copies thereof.
2.1 Seller and Buyer. Purchases made through the Services, including subscriptions, are a transaction between you and Your Vet. The items you purchase through the Services are owned by Your Vet at the time of sale. Hill’s provides fulfillment services for Your Vet including payment processing, shipping and customer service. Hill’s is an agent of Your Vet solely for the purpose of processing payments, refunds and adjustments for items ordered through the Service. Your payment to Hill’s for an item purchased through the Services, is an instruction to pay Your Vet, and you authorize and order us to commit your payment (less any applicable fees or other amounts we may collect under any agreements with Your Vet) to Your Vet. You satisfy your obligations to Your Vet for items purchased through the Services when we receive your payment.
2.2 Your Account. In order to use the Services you must register for an account, provide certain information about yourself as prompted by the registration form, and you may be required to be logged in to the account and have a valid payment method associated with it. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services does not violate any applicable law or regulation or these Terms of Service. If there is a problem charging your selected payment method, we may charge any other valid payment method associated with your account. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your account, and you agree to accept responsibility for all activities that occur under your account or password. Hill’s does sell products for children, but it sells them to adults, who can purchase with a credit card or other permitted payment method. If you are under 18, you may use the Services only with involvement of a parent or guardian. Hill’s reserves the right to refuse service, terminate accounts, terminate your rights to use the Services, remove or edit content, or cancel orders in its sole discretion.
2.3 Order Acceptance. The receipt of an email order confirmation does not constitute the acceptance of an order or a confirmation of an offer to sell. Hill’s reserves the right, without prior notification, to limit the order quantity on any item and/or to refuse service to any customer. Verification of information may be required prior to the acceptance of an order. Prices and availability of products are subject to change without notice. Errors will be corrected when discovered and Hill’s and Your Vet reserve the right to revoke any stated offer and to correct any error, inaccuracy, or omission (including after an order has been submitted). Certain orders constitute improper use of the Service. Hill’s and Your Vet reserve the right, at each of their sole discretion, to refuse or cancel any order for any reason. Your account may also be restricted or terminated for any reason, at Hill’s sole discretion.
2.4 Risk of Loss. All purchases of physical items utilizing the Service are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon delivery to the carrier.
2.5 Returns, Refunds and Title. Hill’s and Your Vet does not take title to returned items until the item arrives at Hill’s warehouse. At Hill’s discretion, a refund may be issued without requiring a return. In this situation, Hill’s and Your Vet does not take title to the refunded item.
2.6 Product Descriptions. Hill’s attempts to be as accurate as possible, however, Hill’s does not warrant that product descriptions or other content of the Service is accurate, complete, reliable, current, or error-free. If a Hill’s product offered through the Service is not as described, your sole remedy is to return the unused portion for a full refund or replacement.
2.7 Pricing. We cannot confirm the price of an item until you order. If your order is fulfilled as part of a subscription, the price of an item will be set at the time the order is processed. See Section 3, SUBSCRIPTIONS for more information. Despite our best efforts, a small number of the items in our catalog may be mispriced. If the correct price of an item is higher than the stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. Other merchants may follow different policies in the event of a mispriced item. We generally do not charge your credit card until after your order has entered the shipping process.
3.1 Discounts and Pricing. Discounts offered as part of a subscription are subject to change. Hill’s reserves the right to change the subscription discount benefits, including the discount amounts and eligibility used to determine discount amounts, at any time in its sole discretion. All changes will apply to future orders, including for current subscriptions.
Some of the offer details may change as you receive deliveries over time (for example, price, taxes, availability, shipping charges, and the seller). If the item is unavailable when we plan to ship it, you will be notified that the item is unavailable.
Your subscription will automatically create a new order according to your chosen delivery schedule, until the end of the subscription period or you cancel.
We may, in our sole discretion, terminate your subscriptions at any time without notice. If we do so, you will only be charged for orders that have been shipped to you.
3.2 Eligible Purchases. Subscription discounts are limited to items displaying a subscription discount offer message. Your participation in the subscription discount program is personal to you, and you may not assign or transfer your Subscription or any of the benefits to any third party without our authorization.
Subscription discounts and any limited time special subscription promotions in effect apply only to eligible items displaying the offer message on the item information pages, and then only if you select the subscription delivery method. Subscriptions are good while supplies last. Special limited time subscription promotions only apply during their effective dates. Subscriptions are void where prohibited.
3.3 Payment; Renewal. The total cost charged to your payment method for each subscription order will be the cost of the item on the day that order is processed less the subscription discount, plus any applicable sales tax. Any eligible credit balances on your Hill’s customer account may be applied toward the balance of your order before charging any remaining balance to your payment method.
The charge for each subscription item shipment will be billed to the payment method used to create your subscription or as otherwise directed by you. If we are unable to complete your subscription order with the payment method you used to create your subscription, you authorize us to update your subscription with another payment method in your account and to charge the payment method for your subscription order.
Your subscription will remain in effect until the end of the subscription period or you cancel. To cancel your subscription you must cancel at least two days before your order ships. Cancellation can be completed by logging into your account or contacting Hill’s to Home customer service. If you cancel your subscription and then reactivate it, the discount applied to any subscription item may not be the same discount in effect at the time of cancellation. If the subscription discount percentage for such subscription item changes, the new discount will be applied to your future shipments of that item.
4. WARRANTIES AND LIMITATIONS OF LIABILITY.
4.1 Warranties. Hill’s warrants that it will use commercially reasonable efforts to cause the Service to operate in substantial conformance with its published documentation. Hill’s sole obligation and your sole remedy with respect to any failure of the Service to substantially conform to the documentation therefore is for Hill’s to use commercially reasonable efforts to remedy any such failure as soon as is reasonably practicable, and if such failure is not remedied in a reasonable time, for You to terminate these Terms of Service pursuant to Section 6.2.
4.2 No Practice of Veterinary Medicine. The Service is not intended to be, and must not be taken to be, the practice of veterinary medicine by Hill’s. Use of the Service does not create a veterinarian/patient relationship with Hill’s. Hill’s is not recommending or endorsing any specific veterinarian treatment or veterinarian.
4.3 Ability to Contract; Legal Age. The Service is offered and available to users who are 18 years of age or older. By using the Services, you represent and warrant that you are of legal age to form a binding contract with Hill’s and meet all of the foregoing eligibility requirements. If you are under the age of 18, make sure that your parent or legal guardian reads and agrees with the Terms of Service on your behalf, as your parent or legal guardian shall be fully responsible for your compliance with these Terms of Service. If you do not meet all of these requirements, you must not access or use the Service. In the Terms of Service, “you”, “user” or “your” means any person or entity using the Service, provided that if such person is under the age of 18, “you” and “your” also includes such person’s parent or legal guardian.
4.4 Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 4.1, HILL’S DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SERVICE OR ANY OTHER MATTER COVERED BY THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HILL’S DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR DELAY AND/OR BE ERROR-FREE, OR THAT ALL FAILURES OF THE SERVICE TO CONFORM TO THE DOCUMENTATION CAN OR WILL BE CORRECTED. HILL’S MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OF ANY CONTENT PROCESSED BY THE SERVICE OR THE APP.
4.5 Limitations of Liability. IN NO EVENT SHALL Hill’s BE LIABLE FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY
EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. The aggregate liability of Hill’s for any and all claims arising under or in connection with these Terms of Service or its subject matter shall not exceed $500.
4.6 Essential Part of the Bargain. The parties acknowledge that the disclaimers and limitations set forth in this Section 2 are an essential element of these Terms of Service between the parties and the parties would not have entered into these Terms of Service without such disclaimers and limitations.
5. UNAUTHORIZED USE
5.1 Notification of Unauthorized Use. You shall promptly notify Hill’s in writing upon your discovery of any unauthorized use or infringement of the Service, or the related documentation, or Hill’s intellectual property rights with respect thereto. Hill’s shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party and, in the event that Hill’s brings such an action or proceeding, you shall cooperate and provide full information and assistance to Hill’s and its counsel in connection with any such action or proceeding.
6. TERM AND TERMINATION
6.1 Term. Your access to the Services shall begin on the date you register for the Service and shall continue until terminated earlier under the provisions of this Article 4.
6.2 Termination for Convenience. Hill’s may terminate your use of the Service at any time. You may terminate this Agreement at any time by cancelling your account for the Services.
6.3 Effect of Termination. Upon the expiration or sooner termination of these Terms of Service, all of your license rights under these Terms of Service shall automatically and immediately cease and you shall promptly cease all uses of the Service. Sections 4.5, 4.6, 6.3 and 7 shall survive the expiration or sooner termination of these Terms of Service.
7.1 Export Compliance. The Service may be subject to U.S. and other national export controls and economic sanctions. Individuals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to access the Service without prior written permission from Hill’s once granted by the appropriate jurisdiction. The rights and obligations of You shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. You shall certify that it shall not, directly or indirectly, export, re-export or transship the Service in such manner as to violate such laws and regulations in effect from time to time. You shall indemnify and hold harmless Hill’s from and against any and all losses, claims and expenses incurred by Hill’s as a result of the breach of your obligations under this Section.
7.2 Independent Contractors. In making and performing these Terms of Service, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose.
7.3 Force Majeure. In the event that Hill’s is unable to perform its obligations under these Terms of Service because of acts of God, strikes, equipment or transmission failure, unavailability or poor performance of the Internet, or other causes reasonably beyond its control, Hill’s shall not be liable to the You for any damages resulting from such failure to perform or otherwise from such causes.
7.4 Governing Law. These Terms of Service are governed by the laws of the State of Kansas, without regard to its choice of law provisions. The courts of general jurisdiction located within Shawnee County, Kansas, will have exclusive jurisdiction over any and all disputes arising out of, relating to or concerning these Terms Service or in which these Terms of Service are a material fact.
7.5 Dispute Resolution. Any controversy or claim between the parties or between you and Your Vet arising out of these Terms of Service or any use of the Service shall be determined by one disinterested arbitrator in binding arbitration pursuant to the Commercial Arbitration Rules and the Supplementary Procedures for Online Arbitration of the American Arbitration Association (the “AAA”). The arbitrator shall be experienced in agreements for information technology services, either as an attorney or as an information technology professional. If the parties fail to appoint an arbitrator within forty-five (45) days of the institution of the arbitration, the AAA shall select the arbitrator promptly thereafter. Any requests for accelerated, emergency or preliminary relief shall be submitted pursuant to the AAA’s Optional Rules for Emergency Measures of Protection. If any such requests are made before an arbitration panel is empaneled, then the AAA shall appoint one disinterested arbitrator as an arbitration panel to immediately hear and decide such request. The arbitration panel shall have the right to grant interim awards. Testimony shall be permitted by telephone, video conference and other forms of real-time telecommunications. If the arbitrator requires in-person hearings, the hearings shall be held in Topeka, Kansas. The arbitral award will be final and binding, and may be entered and enforced in any court of competent jurisdiction.
7.6 Waiver of Jury Trial and Class Actions. BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND HILL’S ACKNOWLEDGE AND AGREE TO WAIVE CERTAIN RIGHTS TO LITIGATE DISPUTES IN COURT, TO RECEIVE A JURY TRIAL OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. YOU AND HILL’S BOTH AGREE THAT ANY ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT A CONSOLIDATED, CLASS-WIDE OR REPRESENTATIVE BASIS AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO PROCEED WITH AN ARBITRATION ON A CLASS OR REPRESENTATIVE BASIS. THE ARBITRATOR MAY AWARD INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. IF FOR ANY REASON THE ARBITRATION CLAUSE SET FORTH IN THESE TERMS OF SERVICE IS DEEMED INAPPLICABLE OR INVALID, OR TO THE EXTENT THE ARBITRATION CLAUSE ALLOWS FOR LITIGATION OF DISPUTES IN COURT, YOU AND HILL’S BOTH WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.
7.7 Public Statements. Either party may disclose the existence of these Terms of Service but
may not represent to any third party any positions, statements, intentions or other actions on behalf of the other.
7.8 Assignment. You may not assign any of its rights or privileges, or delegate any of your duties or obligations hereunder to any third party without the prior written consent of Hill’s. Any purported assignment in contravention of this Section shall be null and void. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
7.9 Notices. All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand, facsimile transmission, reputable overnight delivery service, or certified mail (return receipt requested), postage prepaid to: (a) in the case of Hill’s, to the address set forth on the Hill’s website to the attention of the President; and (b) in the case of you, to the address set forth in your account information.
7.10 Entire Agreement; Amendment. These Terms of Service constitute the entire agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter hereof. These Terms of Service may not be amended, supplemented or otherwise modified by you except by an instrument in writing signed by both parties and attached hereto. Hill’s may modify the Terms of Service upon providing written notice to you either via the e-mail registered under your account or by posting such changes through the Hill’s to Home website. Any use the Service following any such modification constitutes an acceptance of the modification. If you do not accept any modification, you must immediately cease all usage of the Service.
7.11 Waivers. A waiver by either party of a breach or violation of any provision of these Terms of Service will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of these Terms of Service.
7.12 Severability. If any provision of the Terms of Service is held to be unenforceable, it shall be severed and the remaining provisions will remain enforceable. The severed provision will be replaced by an enforceable provision most nearly reflecting the intention of the parties.
7.13 Electronic Communications. When you use Hill’s Services, or send e-mails, text messages, and other communications from your desktop or mobile device to us, you may be communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages on this site or through the other Hill’s Services, and you can retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.