Member Agreement for Dog Parker
Effective Date: July 13, 2017
Last Updated: July 13, 2017
PLEASE READ THIS MEMBER AGREEMENT CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU (“MEMBER” OR “YOU”) AND DOG PARKER, INC. (“DOG PARKER,” “WE,” OR “US”).
As the owner or legal caretaker of the below-referenced dog (“your dog”) and in consideration of your use of any of the services associated with the Dog Parker doghouses (“Services”), you agree to all terms and conditions in the following Member Agreement. The Services are composed of several elements, including but not limited to (1) Dog Parker doghouses and associated street treatments (“doghouses”), (2) the Dog Parker Application (“App”), (3) the Dog Parker website located at http://www.dogparker.com/ (“Website”), and (4) all related equipment, personnel, and information. If you do not agree to be bound by this Agreement, you may not access or use the Services.
THIS MEMBER AGREEMENT CONTAINS RELEASES, WARRANTY LIMITATIONS, ASSUMPTIONS OF RISK, AND INDEMNITY PROVISIONS, ALL OF WHICH LIMIT YOUR LEGAL RIGHTS AND REMEDIES. YOU SHOULD READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS BINDING EFFECTS.
As provided in greater detail in this Member Agreement (and without limiting the express language of this Member Agreement), you acknowledge the following:
- You fully release Dog Parker, placement hosts, and the operators and sponsors of the Services, including any third parties such as the City of New York or the State of New York, from all claims you have or may have against them arising out of or in connection with your use of the Services;
- The Services, including the doghouses, are provided “as-is” and we make no promises that they will be in good repair or error-free;
- There are risks and dangers inherent in using the doghouses and your use of the Services is at your and your dog’s sole risk;
- You are responsible for all injuries and/or damages that you cause to other people or property, or the Services; and
- You give Dog Parker your consent to use photos or videos of you that are taken while you are using the Services.
ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1.1 Account Creation. In order to use the Services, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. 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. You may delete your Account at any time, for any reason, by following the instructions on the Services. Dog Parker may suspend or terminate your Account in accordance with Section 7.
1.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Dog Parker of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Dog Parker cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. You understand that you may not allow any dogs besides your dog(s) registered to your Account to use the doghouses. You may not transfer or share your Account to any other individual unless that individual is registered as an “additional caretaker” on your Account.
1.3 Other Members. Your interactions with other members of the Services are solely between you and such members. You agree that Dog Parker will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any member of the Services, we are under no obligation to become involved.
2. FEES AND PAYMENT TERMS
2.1 Fees. You agree to the fees and charges associated with the use of the Services as described in the account creation process (or as indicated on relevant promotional materials associated with your Account) and agree to pay for all charges immediately after you pick up your dog from the doghouse. You acknowledge that these fees and charges may change from time to time and that you have the opportunity to review current standard fees and charges at anytime as described in our Fees and Charges Schedule located at http://www.dogparker.com/fees-and-charges-schedule/. You further agree that in addition to all other rights and recourses set out in this Agreement, Dog Parker reserves the right to impose penalties if you breach any provision of this Agreement.
2.2 Auto-Renewal. Your Account may be auto-renewed upon the period’s expiration. Members who have been enrolled into auto-renew may prevent their membership from auto-renewing by going to your Account page in the App or in the member area of the Website and selecting ‘cancel subscription’.
3. Access to the Services
3.1 Appropriate Use. You understand that you may access and use the Services solely for your personal, non-commercial use. Appropriate use includes (i) unlocking a doghouse in order to place your dog in the doghouse for periods up to but not exceeding ninety (90) consecutive minute, and three (3) total hours in a single twelve (12) hour period; (ii) locking a doghouse with your dog in it; and (iii) reserving a doghouse using the App to place your dog in the doghouse within the allotted reservation window.
3.2 Restrictions; Prohibited Acts. The following acts are expressly prohibited under this Agreement; in addition to the penalties specified below, any of these acts is grounds for Dog Parker to sever your access to the Services:
(a) Entering the doghouse: You understand that you may not enter a doghouse under any circumstance. If you need to retrieve your dog or items you have placed in the doghouse you may reach into the doghouse but may not enter your full body into the doghouse, nor may you close the doghouse door behind you. You understand that if you do enter into the doghouse Dog Parker may charge you a cleaning fee of up to $50.
(b) Putting materials in the doghouse: You understand that you may not leave any items of any kind in the doghouse with the exception of dog toys, dog treats, a container containing water for your dog, dog clothing, dog carriers and/or leash accessories. You understand that you may only leave the aforementioned items in a doghouse when your dog is also in the doghouse. You understand that you must retrieve all items left with your dog when you retrieve your dog from a doghouse. You understand that if you do put any items, other than those permitted, into the doghouse Dog Parker may charge you a cleaning fee of up to $50.
(c) Putting living beings in the doghouse: You understand that you may not put any living being other than your dog in the doghouse, including but not limited to people, or any other animal of any kind. You understand that if you do put any living being other than your dog into the doghouse Dog Parker may charge you a cleaning fee of up to $50.
(d) Dangerous and Hazardous Materials: You understand that you may not place any hazardous or dangerous substances, especially those that are specifically dangerous to dogs, in or within five (5) feet of a doghouse. If you do so, you will be subject to the full extent of all applicable laws, including but not limited to animal cruelty laws, and you assume complete and total responsibility for the full cost of all treatment, and cleaning required if you violate the foregoing.
(e) Adding Locks: You understand that you may not use any locking mechanism on the doghouse, other than the locking mechanism already provided on the doghouse. You understand that if you do use any locking mechanism on the doghouse Dog Parker may charge you a lock removal fee of up to $50.
(f) Use While Impaired: You understand that you may not use a doghouse while under the influence of any alcohol, drugs, medication, or other substance that may impair your ability to safely operate a doghouse.
(g) Defacement: You understand that you may not modify, dismantle, write on, or otherwise alter or deface a doghouse or any part of a doghouse in any way. You may not write on, peel, or otherwise modify or deface any sticker or vinyl on a doghouse in any way. You may not use a doghouse for any advertising or similar commercial purpose. You assume complete and total responsibility for the full cost of all treatment, repairs and replacements required if you violate the foregoing.
(h) Violation of Law: You understand that you may not violate any applicable federal, state, or local law or regulation, or violate or ignore any command or instruction from law enforcement personnel while using a doghouse.
(i) General Misuse: You understand that you may not use the Services in a negligent or abusive manner or for any use outside the scope of Section 3.1.
(j) False and/or Misleading Information: You understand that you may not use the Services if you have provided Dog Parker with false and/or misleading information in order to enroll in in the Services.
(k) Malignant Intent: You understand that you may not use the Services if your intent is to malign, or otherwise damage the reputation of Dog Parker or its employees, volunteers, officers, directors, partners, agents, insurers, affiliates, and/or placement hosts (the owners, operators or tenants of retail locations or properties where, or outside of which, the doghouses are located). You understand that if you use the Services with malignant intent then Dog Parker has the right to pursue remedies for breach of this Agreement, including but not limited to the right to pursue damages.
(l) Service Security: You understand that you are prohibited from violating, or attempting to violate, the security of the Services. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your access to the Services, at Dog Parker’s sole discretion. Dog Parker reserves the right to investigate any alleged or suspected violations and, if a criminal violation is suspected, refer such suspected violation to the appropriate law enforcement agencies and cooperate fully with such investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the Services.
(m) Intellectual Property: You understand that you may not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Services or any part thereof, or attempt to do any of the foregoing, except and solely to the extent permitted by this Agreement, the authorized features of the Services, or by law, or otherwise attempt to use or access any portion of the Services other than as intended by Dog Parker.
THE FOREGOING LIST IS NOT EXHAUSTIVE AND ANY UNREASONABLE OR INAPPROPRIATE USE OF A DOGHOUSE, AS DETERMINED BY DOG PARKER IN ITS SOLE DISCRETION, OR ANY VIOLATION OF ANY LAW OR REGULATION, WILL BE DEEMED A VIOLATION OF THIS AGREEMENT.
3.3 Admittance. Dog Parker reserves the right to refuse admittance to any dog or to dismiss any dog that does not meet Dog Parker’s health, temperament or other standards. This determination shall be made at the sole discretion of Dog Parker. Dog Parker is committed to the safety and care of dogs and will promptly notify the relevant authorities of any signs of neglect and/or abandonment.
3.4 Modification. Dog Parker reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that Dog Parker will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
3.5 No Support or Maintenance. You acknowledge and agree that Dog Parker will have no obligation to provide you with any support or maintenance in connection with the Services.
3.6 Health of Dog. You represent and warrant that (i) your dog is in good health and has not been ill with any communicable disease or parasites within the last thirty (30) days; (ii) your dog will at all times be current on its vaccinations, including but not limited to rabies, distemper, adenovirus, parainfluenza, parvovirus, and Bordetella vaccinations; (iii) your dog is at least six (6) months of age; (iv); your dog is free of ticks and fleas; (v) your dog will be leashed when entering and exiting the doghouses; (v) your dog has no history of aggression with other dogs and/or people; and (vi) your dog does not have any condition that could potentially jeopardize the health of other dogs and/or people. You understand that even with vaccinations, illnesses in dogs may occur. For example, even if your dog is vaccinated for Bordetella (commonly known as Kennel Cough) there is a chance that your dog can still contract Kennel Cough. You agree that Dog Parker will not be responsible if your dog becomes ill, including if your dog contracts Kennel Cough. Dog Parker may, in its sole discretion and at any time, request proof of the above requirements, including but not limited to copies of vaccination certificates. You acknowledge and agree that failure to abide by these requirements or comply with Dog Parker’s requests for documentation will result in immediate refusal of access to the doghouses and a ban on all future use of the Services.
3.7 Clean Up. You understand that you must clean up any bodily excretions left by your dog in the doghouse. You understand that if you do not clean up after your dog Dog Parker may charge you a cleaning fee of up to $50.
3.8 Emergencies. You understand that, in the event of an emergency, Dog Parker will make reasonable efforts to ensure the safety of your dog which may include removing them from the doghouse and contact you and/or your designated emergency contact regarding any treatment, illness, injury or potential problems as soon as the condition is deemed non-life threatening and/or contact is possible. Dog Parker is authorized to seek veterinary assistance in the event of an emergency. You grant Dog Parker permission to take any and all steps necessary to obtain medical treatment for your dog and assume full responsibility for any and all charges incurred therewith, including but not limited to diagnosis, treatment, grooming, medical supplies and boarding. You understand that service at your dog’s veterinarian may not be feasible in the event of illness or injury and further consent to any professional veterinarian being retained to render care for your dog.
3.9 Time Limit, Abandonment. You understand and agree that if your dog is not picked up by the end of the Dog Parker regular business day (if set business hours are being kept) or within the stated time limits set forth in Section 3.1, then you hereby expressly authorize Dog Parker to take whatever action is deemed necessary for the continuing care of your dog, including, but not limited to, removing your dog from the doghouse and transferring your dog to an alternative venue suitable for longer term stays, including but not limited to doggie daycare and animal boarding facilities. You agree to pay Dog Parker for any and all costs of continuing such care immediately upon retrieval of your dog. You further understand and agree that if your dog is left for more than the maximum time allowed under Section 3.1, you will pay $5 per minute for every minute over the stated time limits until such time as the dog is retrieved from the doghouse by you or a Dog Parker representative. If continuing care action is required, an administrative fee of $200 will be incurred in addition to the cost of the continuing care. You understand and agree that if you do not pick up your dog within ten (10) days of when your dog is removed from the doghouse, Dog Parker is authorized to proceed according to the local municipal code governing abandonment of animals and the relevant authorities will be notified.
4. PHOTOS AND VIDEOS. Photos and/or video footage may be taken of you and/or your dogs utilizing the Services. You agree to allow Dog Parker to use any image, video and/or likeness of you and/or your dog taken while using the Services for marketing, educational and/or promotional materials, understanding that the resulting photos, videos and/or or likenesses are the sole property of Dog Parker.
5. Indemnification; Release
5.1 Indemnification. You agree to indemnify and hold Dog Parker (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your or your dog’s use of the Services, (b) your violation of this Agreement or (c) your violation of applicable laws or regulations. Dog Parker reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Dog Parker. Dog Parker will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
5.2 Release. You hereby release and forever discharge Dog Parker (and its officers, employees, volunteers, directors, partners, agents, insurers, affiliates, successors, placement hosts (the owners, operators or tenants of retail locations or properties where, or outside of which, our doghouses are located), assigns, and all public sector entities with relevant jurisdiction) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including those relating to damage, illness, injury, death and/or escape), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services.
6. Disclaimers; Assumptions of Risk; Limitation of Liability
6.1 Disclaimer. THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND DOG PARKER (AND ITS SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
6.2 Assumption of Risk. You understand that your and your dog’s use of the Services is at your and your dog’s sole risk. You understand and agree that you are solely responsible for any harm to your dog while your dog is utilizing the Services. By enrolling in the Services, you warrant and represent that you are the legal owner or caretaker of your dog and assume all risks, dangers and responsibility, including but not limited to any lost, stolen or damaged personal property belonging either to you or your dog or for injuries to your dog. You understand that if your dog causes any property damage to the doghouses, you assume all responsibility for the full cost of all treatment, repairs and replacements. You agree to notify Dog Parker of any and all alleged problems with the doghouses within twenty-four (24) hours of your dog’s use of the Services. You understand that if after use by your dog the doghouse is damaged or in a state of disrepair, then you will be charged a fee that is equal to the cost of repair. Such fees may be charged as soon as twenty-four (24) hours after the doghouse is determined to be damaged. You understand that Dog Parker will attempt to contact you via telephone and/or email before charging your credit or debit card using the contact information provided in your Account. You understand that you are solely responsible for all injuries or damages that you cause to yourself, other people, property, the Services, or Dog Parker’s reputation by attempting to enter a doghouse yourself or permitting any other unauthorized access to or use of the Services.
6.3 Limitation OF Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL DOG PARKER (OR ITS SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF DOG PARKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
7. Term and Termination. Subject to this Section, this Agreement will remain in full force and effect while you use the Services. We may suspend or terminate your rights to use the Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of this Agreement. Upon termination of your rights under this Agreement, your Account and right to access and use the Services will terminate immediately. Dog Parker will not have any liability whatsoever to you for any termination of your rights under this Agreement, including for termination of your Account. Even after your rights under this Agreement are terminated, the following provisions of this Agreement will remain in effect: Sections 1 and Sections 3 through 9.
8. Dispute Resolution. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires you to arbitrate most disputes with Dog Parker and limits the manner in which you can seek relief from us.
8.1 Applicability of Arbitration Agreement. You agree that any dispute between you and us relating in any way to the Services, our advertising or marketing practices, or this Agreement, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Dog Parker 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 this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH DOG PARKER, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST DOG PARKER ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING COVERED CLAIMS AGAINST DOG PARKER ONLY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS ARBITRATION AGREEMENT.
8.2 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 The Legal Department, Dog Parker – New Lab, 19 Morris Avenue, Brooklyn NY 11205. 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, Dog Parker will pay them for you. In addition, Dog Parker will reimburse all such JAMS’ filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the 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.
8.3 Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency 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 Dog Parker. 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 under applicable law, the arbitral forum’s rules, and this Agreement (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.
8.4 Waiver of Jury Trial. YOU AND DOG PARKER HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Dog Parker are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 8.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement 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.
8.5 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND CLAIMS OF MORE THAN ONE CUSTOMER OR MEMBER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR MEMBER. Notwithstanding anything to the contrary herein, in the event that this Section 8.5 is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor we shall be entitled to arbitration of such claim or dispute and instead the applicable claim or dispute shall be resolved in a court as set forth in Section 9.1.
8.6 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: Dog Parker – New Lab, 19 Morris Avenue, Brooklyn, NY 11205, Attn: Legal Department] or email@example.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Dog Parker username (if any), the email address you used to set up your Account (if you have one), 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 this Agreement 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.
8.7 Severability. Subject to Section 8.5, 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.
8.8 Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with Dog Parker.
8.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Dog Parker makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) of which you had already provided notice to Dog Parker.
9. GENERAL TERMS.
9.1 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Dog Parker agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state courts in Kings County, New York or federal courts located in the Eastern District of New York.
9.2 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW OR OTHER 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 THIS AGREEMENT.
9.3 Changes. This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on the Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on the Services. These changes will be effective immediately for new members of the Services. Continued use of the Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
9.4 Disclosures. Dog Parker is located at the address in Section 9.11. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product 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.
9.5 Electronic Communications. The communications between you and Dog Parker use electronic means, whether you use the Services or send us emails, or whether Dog Parker posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Dog Parker in an electronic form (including but not limited to via email, SMS or third party communication platforms); and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Dog Parker provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
9.7 Force Majeure. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including, a significant failure of the Internet, fire, flood, acts of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, or civil or military authority.
9.8 Copyright/Trademark Information. Copyright © 2016 Dog Parker, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
9.9 Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Dog Parker is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Dog Parker’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Dog Parker may freely assign this Agreement. The terms and conditions set forth in this Agreement shall be binding upon assignees.
9.10 Force Majeure. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including, a significant failure of the Internet, fire, flood, acts of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, or civil or military authority.