Last Updated: February 4, 2020
Section 15 of these Terms contains a mandatory arbitration provision that requires the use of arbitration on an individual basis and limits the remedies available to you in the event of certain disputes.
By accessing or using any Pallaby website with an authorized link to these Terms (the “Site”), accessing or using any content, information, services, features or resources available or enabled via the Site (collectively with the Site, the “Services”), clicking on a button or taking any other action to signify your acceptance of these Terms, or completing our account registration process, you: (1) agree to be bound by these Terms and any future amendments and additions to these Terms as published from time to time through the Site; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract with Pallaby; and (3) represent that you have the authority to enter into these Terms personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services and to bind that entity to these Terms. References to “you,” “User” and “Users” in these Terms refer to all individuals and other persons who access or use the Services, including, without limitation, any companies, organizations or other legal entities that register accounts or otherwise access or use the Services through their respective employees, agents or representatives. Except as otherwise provided herein, if you do not agree to be bound by these Terms, you may not access or use the Services.
Subject to Section 15.9 of these Terms, Pallaby reserves the right to modify these Terms or its policies relating to the Services at any time, effective upon posting of an updated version of these Terms. You should regularly review these Terms, as your continued use of the Services after any such changes constitutes your agreement to such changes.
- REGISTRATION. In order to access and use certain areas or features of the Services, you will need to register for a Pallaby account (“Account”). By creating an Account, you agree to (a) provide accurate, current and complete account information about you and your pet(s), (b) maintain and promptly update from time to time as necessary your Account information, (c) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to us, and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the Services or your Account. Additionally, we reserve the right to refuse access to, or use of the Services to anyone, and may terminate any Account, at any time, in our sole discretion. You are only authorized to create and use one Account for the Services and are prohibited from using alter egos or other disguised identities when using the Services.
- ORDER PROCESS.
- Order Acceptance. Each part of any order that you submit to Pallaby constitutes an offer to purchase. If you do not receive a message from Pallaby confirming receipt of your order, please contact our Customer Service department before re-entering your order. Pallaby's confirmation of receipt of your order does not constitute Pallaby's acceptance of your order. Pallaby is only deemed to have accepted your order once the product(s) you ordered (the “Product”) have been shipped. If you do not receive an email from Pallaby confirming receipt of an order that you placed, please contact Pallaby at firstname.lastname@example.org before you attempt to place another order.
- Order Issues. Although we strive to accept all valid orders, Pallaby reserves the right to deny any order for any reason, including if: (i) we discover an error in pricing and/or other information about the Product or receive insufficient or erroneous billing, payment, and/or shipping information, (ii) we suspect an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, or (iii) the ordered Product is unavailable due to discontinuance or otherwise. We may also refuse any order that is connected with a previous payment dispute.
- Order Cancellation. If any Product is discontinued or otherwise becomes unavailable, Pallaby reserves the right to cancel your order and provide you a refund for the amount paid for the Product.
- Restrictions on Resale. To protect the intellectual property rights of Pallaby and its licensors and suppliers, any resale of Product for personal and/or business profit is strictly prohibited. Pallaby reserves the right to decline any order that we deem to possess characteristics of reselling.
- FEES AND PURCHASE TERMS.
- All prices are shown in U.S. dollars and applicable Taxes and other charges, if any, are additional unless explicitly stated otherwise. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice. By providing a credit card or other payment method that we accept (“Payment Method”), you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your Payment Method for the total amount of your subscription or other purchase (including any applicable taxes and other charges). If the Payment Method cannot be verified, is invalid or is otherwise not acceptable, your order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your order. In the event your Payment Method fails when we attempt a charge, we will try again periodically and promptly notify you and try again periodically. If we cannot successfully charge your Payment Method, we reserve the right to not send your order. If we do send your order, you are responsible for prompt payment. In the event you want to change or update your Payment Method or any relevant payment information, you can do so at any time by logging into your Account.
- WHEN YOU PLACE AN ORDER, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) PALLABY (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON A RECURRING BASIS FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES; AND (B) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SERVICES OR PRODUCT IN ACCORDANCE WITH THESE TERMS. IF YOUR PAYMENT DETAILS CHANGE, YOUR PAYMENT METHOD PROVIDER MAY PROVIDE US WITH THE UPDATED PAYMENT DETAILS. WE RESERVE THE RIGHT TO USE THESE UPDATED DETAILS FOR FUTURE CHARGES IN ORDER TO HELP PREVENT ANY INTERRUPTION TO DELIVERY.
- Product purchased by and shipped to users in locations in the U.S. may be subject to applicable state or local sales or use tax, privilege tax or similar transaction-based taxes (“State Tax”). Product purchased and shipped to users in locations outside the U.S. may also be subject to applicable taxes, including value added taxes (collectively, with State Tax, “Taxes”). The amount of Taxes is based on a number of factors, including but not limited to the type of Product purchased, your billing address or the location of the designated delivery address if different from the billing address. You are responsible for paying the applicable Taxes and/or duties associated with the purchase of any Product through the Services.
- Automatic Renewal of Subscriptions and Charges. BY SIGNING UP FOR OUR SUBSCRIPTION, YOU ARE AGREEING TO RECURRING PERIODIC PAYMENTS FOR AN INDEFINITE TIME UNTIL DEACTIVATED BY YOU OR US, ON THE SUBSCRIPTION TERMS SET OUT IN THE APPLICATION FORM YOU HAVE COMPLETED, SUBJECT TO VARIATION IN ACCORDANCE WITH THIS SECTION. YOU CAN DEACTIVATE YOUR SUBSCRIPTION AT ANY TIME, PROVIDED THAT YOU DO SO WITHIN THE APPLICABLE DEACTIVATION NOTICE PERIOD SET FORTH BELOW. YOU WILL NOT BE CHARGED FOR ANY DEACTIVATION. YOU CAN RE-SUBSCRIBE AT ANY TIME FOLLOWING YOUR DEACTIVATION, BUT WE RESERVE THE RIGHT NOT TO PERMIT RE-SUBSCRIPTION WHERE WE HAVE PREVIOUSLY ELECTED TO TERMINATE A SUBSCRIPTION BY YOU.
FURTHERMORE, FOLLOWING YOUR INITIAL SUBSCRIPTION PERIOD, YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR THE PERIOD STATED IN YOUR RECEIPT SUMMARY. YOU CAN LOG ON TO YOUR ACCOUNT TO DEACTIVATE YOUR SUBSCRIPTION OR EMAIL email@example.com AND WE WILL DO IT FOR YOU. FULL DETAILS FOR DEACTIVATION PROCEDURES ARE SET FORTH BELOW IN THIS SECTION. IF YOU DEACTIVATE, YOU MAY USE YOUR SUBSCRIPTION UNTIL THE END OF YOUR THEN-CURRENT SUBSCRIPTION TERM; YOUR SUBSCRIPTION WILL NOT BE RENEWED AFTER YOUR THEN-CURRENT TERM EXPIRES. YOU WILL NOT BE ELIGIBLE FOR A PRORATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD.
- Cancellations. Please contact us at firstname.lastname@example.org if you would like to cancel your order. All cancellations must occur prior to the time your Payment Method has been charged for your subscription.
- Satisfaction Guarantee. If you are a Subscription customer and are dissatisfied with a Product, in accordance with our Satisfaction Guarantee, you must contact us at email@example.com within fourteen (14) days of receiving your first shipment. Except as approved by Pallaby in its sole discretion, subject to the Satisfaction Guarantee, if applicable, all fees paid are non-refundable.
- Credits. Any credits on your Account will be automatically applied to your next order prior to charging your Payment Method.
- Discounts and Promotions.
- Pallaby reserves the right to change subscription discount benefits at any time in its sole discretion, including discount amounts and eligibility used to determine discount amounts. All changes will apply to future orders, including for current subscriptions.
- We may, in our sole discretion, create discounts and promotional codes or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Unless otherwise expressly stated on the applicable Promo Code, Promo Codes may only be used once per person. Only Promo Codes sent to you through official Pallaby communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use. All Promo Codes expire as stated in the applicable promotional offer.
- Special terms may apply to some promotions that may be offered on the Services. Such special terms (e.g. official contest rules) may be posted in connection with the applicable promotion. Any such special terms are in addition to these Terms and, in the event of a conflict, any such terms shall prevail over these Terms.
- USER CONTENT.
- Responsible Party for Content. The Services may include interactive features and areas that allow users to create, post, share or store content, including, but not limited to, recipes, reviews, photos, videos, music, sound, text, graphics, code, items or other materials (collectively, “User Content”). In the event you decide to share your User Content with others through the Services, you understand that this User Content will be viewable by others. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas of the Services. We are not responsible or liable for any User Content. Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Services at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Services at your sole cost and expense.
- Ownership of Your Content. Pallaby does not claim ownership of any User Content you make available on the Services (“Your Content”). However, when you as a User post or publish Your Content on or in the Services, you represent that you have all of the necessary rights to grant Pallaby the license set forth in Section 4.3. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in the Services.
- License to Your Content. By uploading, posting or submitting User Content to the Services or to our pages or feeds on our third-party social media platforms (e.g., Pallaby’s Facebook page, Instagram page or Twitter feed), you hereby grant us a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, for purposes of operating and providing the Services.
- Ratings and Reviews. Ratings and reviews posted by Users on our Services are User Content that is not endorsed by Pallaby and does not necessarily represent the views of Pallaby. Pallaby does not assume liability for ratings and reviews or for any claims for economic loss resulting from such ratings and reviews. Because we expect Users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with the applicable Product; (ii) you will not provide a rating or review for any Product with respect to which you have a competitive, ownership or other economic interest, employment relationship or other affiliation; and (iii) your review will comply with these Terms. If we determine, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such User Content without notice.
- Other Restrictions on User Content. You agree not to use the Services for any purpose prohibited by these Terms or by applicable law. You shall not (and shall not permit any third-party to) (a) take any action or (b) make available any content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Pallaby's prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or (v) impersonates any person or entity, including any employee or representative of Pallaby.
- FEEDBACK. You agree that your submission of any questions, comments, suggestions, ideas, original or creative materials or other information about Pallaby, the Services or the Product (collectively, “Feedback”) is at your own risk and that Pallaby has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit any Feedback you choose to submit to us. You hereby grant to Pallaby a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
- Use of the Services. Unless otherwise indicated in writing by us, the Services and all content and other materials contained therein, including, without limitation, the Pallaby logo and all designs, text, graphics, pictures, information, data, software, sound files, User Content (as defined in Section 4.1), other files and the selection and arrangement thereof (collectively, “Content”) are our proprietary property or our licensors or users, as applicable, and are protected by U.S. and international copyright laws. Subject to these Terms, we hereby grant you a limited, nonexclusive, nontransferable, nonsublicensable license to access and use the Services and Content solely for your personal, non-commercial purposes. Pallaby, its suppliers, and its service providers reserve all rights not granted in these Terms.
- Trademarks. “Pallaby,” the Pallaby logo and any other Product or service names, logos or slogans that may appear on the Services or Product are trademarks of Pallaby and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Pallaby” or any other name, trademark or Product or service name of Pallaby without our prior written permission. In addition, the look and feel of the Services and Product, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Pallaby and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, Product names and company names or logos mentioned on the Services or Product are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder.
- RESTRICTIONS ON USE OF SERVICES. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Services or any portion of Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Pallaby’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services; (f) you shall not access Services in order to build similar or competitive products or services; (g) except as expressly stated herein, no part of Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Services. Any future release, update or other addition to Services shall be subject to these Terms. Pallaby reserves all rights not granted in these Terms. Any unauthorized use of Services terminates the licenses granted by Pallaby pursuant to these Terms. The foregoing sentence is not exclusive of any other rights or remedies that may be available to Pallaby under law, equity, statute, or otherwise.
- THIRD-PARTY LINKS. The Services may contain links to third-party services such as third party websites, applications, or ads (collectively, “Third Party Links”). We do not control, endorse or adopt any Third Party Links, and we make no representations or warranties of any kind regarding such Third Party Links, including, without limitation, regarding its accuracy or completeness. We provide these links to you only as a convenience, and the inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Services, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Services.
- INDEMNIFICATION. You agree to indemnify and hold Pallaby, its parents, subsidiaries, affiliates, officers, employees, contractors, agents, business partners, and licensors (collectively, the “Pallaby Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use or misuse of the Services, Content or Product; (b) any User Content you create, post, share or store on or through the Services or our pages or feeds on third party social media platforms; (c) any Feedback you provide; (d) your violation of these Terms; (e) your violation of the rights of another; and (f) your violation of any applicable laws, rules or regulations. Pallaby reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Pallaby in asserting any available defenses. You agree that the provisions in this Section will survive any termination of these Terms or your access to Services.
- DISCLAIMER OF WARRANTIES AND CONDITIONS.
Our food is designed for pet consumption only. It is your responsibility to verify whether our Product is suitable for your pets and to inform us if your pet has any health issues, including allergies. We are not veterinarians and do not offer veterinary advice. We make no representations about the suitability of our Product for your specific pet, and disclaim all liability associated with any adverse reactions. If you are concerned about whether our Product is suitable for your pet, please consult with your veterinarian.
YOU ARE SOLELY RESPONSIBLE FOR THE PROPER AND SAFE HANDLING, PREPARATION, STORAGE, USE AND CONSUMPTION OF THE PRODUCT YOU RECEIVE FROM US. YOU ACKNOWLEDGE THAT WE HAVE NO LIABILITY WHATSOEVER FOR HUMAN CONSUMPTION OF PRODUCT DESIGNED FOR PETS. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU OR YOUR PET MAY HAVE AND VERIFYING THE PRODUCT AND THE CONTENTS BEFORE YOU OR YOUR PET HANDLE, PREPARE, USE OR CONSUME SUCH PRODUCT. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT WE MAY STORE, PORTION AND PACKAGE PRODUCT CONTAINING ALL EIGHT (8) MAJOR U.S. ALLERGENS (MILK, WHEAT, EGG, SOY, FISH, SHELLFISH, PEANUTS AND TREENUTS) AND CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN OUR PRODUCT.
WE ATTEMPT TO DISPLAY THE PRODUCT AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SERVICES, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION AND ARE NOT RESPONSIBLE FOR ANY CLAIMS ARISING OR RESULTING FROM YOUR RELIANCE THEREON. YOU FURTHER AGREE THAT THE PRODUCT AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCT AND MATERIALS DISPLAYED ON THE SERVICES DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF PRODUCT, DISTINCT COOKING OR OTHER PREPARATION METHODS AND VARIABILITY OF COOKING EQUIPMENT AND APPLIANCES. THE SERVICES MAY CONTAIN INFORMATION ABOUT PRODUCT THAT IS NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO PRODUCT ON THE SERVICES DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.
ALL PRODUCT, THE SITE, THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. PALLABY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SERVICES, CONTENT AND PRODUCT, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SERVICES OR PRODUCT WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
- LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PALLABY OR ANY OF THE OTHER PALLABY PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE SERVICES OR CONTENT OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM US, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF PALLABY PARTIES ARISING OUT OF OR IN ANY WAY RELATED TO THE ORDER, RECEIPT OR USE OF PRODUCT PURCHASED FROM US EXCEED THE GREATER OF (A) THE AMOUNT PAID BY YOU TO PALLABY DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES; OR (C) ONE HUNDRED DOLLARS ($100). THE FOREGOING LIMITATION SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE PALLABY PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.
- PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Services by, or terminating the Accounts of, Users, in appropriate circumstances and in our sole discretion, who infringe the intellectual property rights of others. If you believe that anything on the Services infringes any copyright that you own or control, you may contact our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Pallaby’s Copyright Agent for notice of claims of copyright infringement is as follows: Patrick DePeters, Pouch Pet Foods, Inc., Attn: Pallaby Legal Department, 929 Colorado Ave, Santa Monica, CA 90401, firstname.lastname@example.org.
- TERMINATION. Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to modify, suspend or terminate your right to access or use the Services and to order, receive and use the Product, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law. In addition to suspending or terminating your access to the Services, Pallaby reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, these Terms will remain enforceable against you and unpaid amounts you owe to Pallaby for any purchases will remain due.
All provisions of the Terms which by their nature should survive, shall survive termination of your Account and/or the Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to Product and Content that are not available in your country. These references do not imply that Pallaby intends to announce such Services or Content in your country. The Services are controlled and offered by Pallaby from its facilities in the United States of America. Pallaby makes no representations that Services are appropriate or available for use in other locations. Those who access or use Services from other countries do so at their own volition and are responsible for compliance with local law.
- DISPUTE RESOLUTION.
PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT IN THIS SECTION (“ARBITRATION AGREEMENT”) CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
- Applicability of Arbitration Agreement. You agree that any dispute between you and us relating in any way to the Product, Services, or these Terms, will be resolved by binding arbitration, rather than in court, except that (1) you and we may assert claims in small claims court if the claims qualify; and (2) you or Pallaby may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of these Terms or any prior version of these Terms.
- Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent: Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware, 19808. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and you cannot obtain a waiver from JAMS, Pallaby will pay them for you.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the U.S. county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Pallaby. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial. YOU AND Pallaby HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT and intellectual property claims AS PERMITTED IN section 15.1) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Pallaby are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER OR PERSON. If a decision is issued stating that applicable law precludes enforcement of any of this Section 15.5’s limitations as to a given dispute, claim or request for relief, then such aspect must be severed from the arbitration and brought in the state or federal courts located in California in accordance with Section 16.5. All other disputes, claims or requests for relief shall be arbitrated.
- 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: Pouch Pet Foods, Inc., 929 Colorado Ave, Santa Monica, CA or email to email@example.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
- Severability. Except as provided in Section 15.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Survival of Terms. This Arbitration Agreement will survive the termination or expiration of the Terms or your relationship with Pallaby.
- Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Pallaby makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Pallaby at the following address: Pouch Pet Foods, Inc., 929 Colorado Ave, Santa Monica, CA 90401.
- GENERAL PROVISIONS.
- Electronic Communications. The communications between you and Pallaby may take place via electronic means, whether you visit Services or send Pallaby e-mails, or whether Pallaby posts notices on Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Pallaby in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Pallaby provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- Release. You hereby release Pallaby Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Services, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Pallaby Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Site.
- Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent.
- Force Majeure. Pallaby shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Exclusive Venue. To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and Pallaby agree that all claims and disputes arising out of or relating to these Terms or the Services will be litigated exclusively in the state or federal courts located in San Francisco County, California.
- Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE TERMS.
- Notice. Where Pallaby requires that you provide an e-mail address, you are responsible for providing Pallaby with your most current e-mail address. In the event that the last e-mail address you provided to Pallaby is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by these Terms, Pallaby’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Pallaby at the following address: Pouch Pet Foods, Inc., 929 Colorado Ave, Santa Monica, CA 90401. Such notice shall be deemed given when received by Pallaby by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: or firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- Waiver. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
- Severability. Subject to Section 15.7, if any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
- Export Control. You may not use, export, import, or transfer Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Services, and any other applicable laws. In particular, but without limitation, Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- Entire Terms. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.