Petzey Terms of Service
Last Updated: July 7, 2020
These terms of service constitute a legally binding agreement (the “Agreement”) between you (“You,” “Users,” “Pet Parents,” “Veterinary Professionals,” or “VPs,” as applicable) and Petzey Technology, Inc. (“Petzey,” “we,” “us” or “our”) governing your use of the Petzey application, website, and technology platform (collectively, the “Petzey Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND PETZEY HAVE AGAINST EACH OTHER CAN BE BROUGHT (See section 16 below). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST PETZEY TO BINDING AND FINAL ARBITRATION.
By entering into to this Agreement, and/or by using or accessing the Petzey platform you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions in Section 16) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE PETZEY PLATFORM.
1. The Petzey Platform; Consultation Services; Veterinary Service
The Petzey Platform provides a marketplace using digital interactive text, audio and video technology where persons who seek online consultations with respect to domestic pet health and wellness (“Pet Parents”) can find veterinarians or certified veterinary technicians desiring to provide such consultations (“Veterinary Professionals,” or “VPs”). Pet Parents and VPs are collectively referred to herein as “Users,” and each User shall create a User account that enables access to the Petzey Platform. As a User, you authorize Petzey to help match you with a VP or Pet Parent based on factors which may include your location, VP availability, breed of animal and platform efficiency, and to cancel an existing match and rematch based on the same considerations. For purposes of this Agreement, the consultation services provided by VPs to Pet Parents that are matched through the Petzey Platform shall be referred to collectively as the “Services”.
Any decision by a User to offer or accept Services is a decision made in such User’s sole discretion. Each consultation Service provided by a VP to a Pet Parent shall constitute a separate agreement directly between such persons. Users acknowledge that Petzey acts as a mere conduit and is not the source of or responsible for any of the information, advice or content exchanged between Users as part of, in connection with, or relating to the Services.
Services involve the use of interactive audio and video technology, where the Pet Parent (and the pet that is the subject of the Services) and the VP are not in the same physical location. In connection with the provision of the Services, details of your pet’s health history and health status information may be discussed through the use of interactive video, audio and other telecommunications technology, and the VP may ask the Pet Parent for assistance to conduct an assessment of your pet through these technologies
The following disclaimers are made on behalf of Petzey, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.
VPs PROVIDING SERVICES THROUGH THE PETZEY PLATFORM ARE INDEPENDENT PROFESSIONALS AND AT ALL TIMES ARE ACTING IN THEIR OWN INDEPENDENT PROFESSIONAL CAPACITY. PETZEY DOES NOT PRACTICE VETERINARY MEDICINE AND DOES NOT INTERFERE OR INTERVENE WITH THE PRACTICE OF VETERINARY MEDICINE.
IF YOU BELIEVE YOUR PET IS EXPERIENCING A MEDICAL EMERGENCY, SEEK APPROPRIATE EMERGENCY VETERINARY MEDICAL CARE IMMEDIATELY.
Petzey does not provide veterinary services and is not a veterinary clinic. It is up to the VP to decide whether or not to offer Services to a Pet Parent contacted through the Petzey Platform, and it is up to the Pet Parent to decide whether or not to accept Services from any VP contacted through the Petzey Platform. Petzey has no control over the content, accuracy, completeness, suitability or timeliness of any information exchanged between Users nor the advice provided by VPs, as part of, in connection with or relating to the Services.
Users use the Service at their own risk and are entirely responsible for the decisions made based on Services provided. Neither Petzey nor any third parties who promote the Services or provide you with a link to the Site shall be liable for any damages allegedly caused by (i) Services, engagement, or other use of the Petzey Platform; (ii) the information or advice a Pet Parent or pet obtains from a VP via the Services; or (iii) Pet Parents or pets in their engagement with VPs.
VPs are solely responsible for complying with all applicable laws and regulations relating to the provision of Services including but not limited to those laws and regulations relating to the practice of veterinary medicine. By way of example, Users understand that in order for a VP to diagnose, treat or prescribe medication to a Pet Parent or its pet, that VP must be a duly licensed veterinarian and a valid Veterinary-Client-Patient Relationship (“VCPR”) must be established and in effect with that VP specific to that pet, among other requirements. Absent a valid VCPR, VPs may provide only general information and general advice as may be permitted under applicable law and regulation.
All VPs present evidence of a professional license upon initially being permitted to use the Petzey Platform. However, Petzey does not monitor the compliance by VPs with licensing requirements. Professional licenses are issued by the professional veterinary licensing boards in the states where the VPs practice. You may report a complaint relating to services provided by a Provider by contacting the professional veterinary licensing board in the state where the VPs practice and/or Services were received, as is appropriate.
Electronic or phone communications via the Platform are not confidential or privileged and will not be the subject of any associated confidences or privileges. You understand and agree that all communications, both audio and video, may be recorded for training and quality control purposes.
The Services are not intended to replace a primary care veterinary relationship or be your permanent veterinary medical service but rather augment these services. You should seek emergency help or follow-up care: when recommended by a VP; if the pet appears in pain; if there appears to be a risk of injury to human or animal; or when otherwise needed. Users acknowledge and agree that any decision to seek emergency help or follow-up care is solely the responsibility of the Pet Parent.
There are potential risks associated with the use of the Services in specific and telehealth services in general. These risks include, without limitation:
- the possibility that information transmitted may be insufficient (e.g., poor resolution of images) to allow for appropriate or accurate care decision-making by the VP;
- delays in evaluation or treatment could occur due to failures of the electronic equipment; and
- a lack of access to all of your pet’s health records or other relevant information (including without limitation historical, medical, and behavioral information).
Pet Parents understand and agree that no results can be guaranteed or assured, despite any anticipated benefits from the use of the Services.
The Petzey Platform is provided on an “as is” basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the Petzey Platform and/or the Services. To the fullest extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
Petzey does not warrant that your use of the Petzey Platform or Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error- free, or will meet your requirements, that any defects in the Petzey Platform will be corrected, or that the Petzey Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the Petzey Platform or Services.
Petzey makes no representation that the Petzey Platform and the Services are appropriate for use in locations outside the United States or all territories within the United States. The Petzey Platform and Services are not intended for distribution or use in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Petzey to any registration requirement within such jurisdiction or country.
Petzey cannot guarantee that each Pet Parent or VP is who he or she claims to be. Please use common sense when using the Petzey Platform and Services. Petzey is not responsible for the conduct, whether online or offline, of any User of the Petzey Platform or Services. Users are solely responsible for your interactions with other Users. By using the Petzey Platform and participating in the Services, you agree to accept such risks and agree that Petzey is not responsible for the acts or omissions of Users on the Petzey Platform or participating in the Services.
You are responsible for the use of your User account and Petzey expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.
It is possible for others to obtain information about you that you provide, publish or post to or through the Petzey Platform (including any profile information you provide), send to other Users, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the Petzey Platform or through the Services. Please carefully select the type of information that you post on the Petzey Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”).
Opinions, advice, statements, offers, or other information or content concerning Petzey or made available through the Petzey Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the Petzey Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the Petzey Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
Petzey advises you to use the Petzey Platform with a data plan with unlimited or very high data usage limits, and Petzey shall not be responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the Petzey Platform.
This paragraph applies to any version of the Petzey Platform that you acquire from the Apple App Store. This Agreement is entered into between you and Petzey. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to the Petzey Platform. Petzey, not Apple, is solely responsible for the Petzey Platform and the content thereof as set forth hereunder. However, Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference Apple’s Licensed Application End User License Agreement, for purposes of which, you are “the end user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
3. Modification to the Agreement
In the event Petzey modifies the terms and conditions of this Agreement, such modifications shall be binding on you upon your acceptance of the modified Agreement. Such acceptance shall be deemed provided upon your continued use of the Petzey Platform or Services after any such modifications. Petzey reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting.
The Petzey Platform may only be used by individuals who can form legally binding contracts under applicable law. The Petzey Platform is not intended for children (persons under the age of 18) or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account.
Each Pet Parent represents and warrants that you are the legal owner or guardian of the pet that is the subject of the Services and responsible for all medical decisions for this pet.
As a Pet Parent, you understand that request or use of the Services will result in charges to you (“Charges”). Charges include fees for the consultation Services together with any other charges provided for in this Agreement (see e.g., Section 19 Other Services). Petzey has the authority and reserves the right to determine and modify pricing by posting applicable pricing terms to its Service Fees Schedule or quoting you a price for a specific consultation and/or fees for goods and services purchased through the Platform at the time you make a request. You are responsible for reviewing the applicable Service Fee Schedule or price quote within the Petzey app and shall be responsible for all Charges incurred under your User account regardless of your awareness of such Charges or the amounts thereof.
Other fees and surcharges may apply including state or local fees and taxes.
- Facilitation of Charges. All Charges are facilitated through a third-party payment processing service (e.g., Stripe, Inc.). Petzey may replace its third-party payment processing services without notice to you.
- No Refunds. All Charges are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the Petzey Platform, any disruption to the Petzey Platform or Services, or any other reason whatsoever.
- Coupons. You may receive coupons that you can apply toward payment of certain Charges. Coupons are only valid for use on the Petzey Platform, and are not transferable or redeemable for cash except as required by law. Coupons cannot be combined, and if the cost of the Services covered by the Coupon exceeds the applicable credit or discount value we will charge your payment method on file for the outstanding cost of the Services. Additional restrictions on coupons may apply as communicated to you in a relevant promotion.
- Credit Card Authorization. Upon addition of a new payment method or each request for Service, Petzey may seek authorization of your selected payment method to verify the payment method, ensure the cost of the Service will be covered, and protect against unauthorized behavior. The authorization is not a charge, however, it may reduce your available credit by the authorization amount until your bank’s next processing cycle. Should the amount of our authorization exceed the total funds on deposit in your account, you may be subject to overdraft of NSF charges by the bank issuing your debit or prepaid card. We cannot be held responsible for these charges and are unable to assist you in recovering them from your issuing bank.
If you are a VP, you will receive payment for your provision of Services (“VP Fees”) and certain other fees, if applicable, pursuant to the terms of the Veterinary Professional Addendum, which shall form part of this Agreement between you and Petzey and may be subject to change from time to time. Petzey will collect payments owed to you by Pet Parents as your limited payment collection agent and remit those payments to you as is set forth in the Veterinary Professional Addendum.
7. Petzey Communications
By entering into this Agreement or using the Platform, you agree to receive communications from us, including via e-mail, text message, calls, and in app notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Petzey, its affiliated companies, may include but are not limited to: operational communications concerning your User account or use of the Petzey Platform or Services, updates concerning new and existing features on the Petzey Platform, communications concerning promotions run by us or our third-party partners, and news concerning Petzey and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS OR TEXT MESSAGES, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL OR TEXT MESSAGES BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL OR TEXT MESSAGE ITSELF Or through the profile setting in the petzey mobile app.
8. Your Information
You may be able to create or log-in to your Petzey User account through online accounts you may have with third party social networking sites (each such account, an “SNS Account”). By connecting to Petzey through an SNS Account, you understand that Petzey may access, store, and make available any SNS Account content according to the permission settings of your SNS Account (e.g., friends, mutual friends, contacts or following/followed lists (the “SNS Content”)). You understand that SNS Content may be available on and through the Petzey Platform to other Users. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be your Information.
9. Promotions and Referral Programs
Petzey, at its sole discretion, may make available promotions with different features to any Users or prospective Users. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Petzey. Petzey reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that Petzey determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement.
As part of your User account, Petzey may provide you with a “Group ID” a unique alphanumeric code for you include in the settings of the Petzey App which will identify your use of the Services as relating to a specific employee benefits program or other marketing initiative. You may not sell, trade, or barter your Group ID. Petzey reserves the right to change, deactivate or invalidate any Group ID at any time in Petzey’s sole discretion.
As part of your User account, Petzey may provide you with or allow you to create a “Petzey Code,” a unique alphanumeric code for you to distribute to your friends and family (each a “Referred User”) to become a new Petzey Pet Parent (“Referred Pet Parent”) or VP (“Referred VP”). Petzey Codes may only be distributed for promotional purposes and must be given away free of charge. You may not sell, trade, or barter your Petzey Code. You are prohibited from engaging in paid or sponsored advertising of Petzey Codes in any way, including, but limited to, through any of the following: Google, Facebook, Twitter, Bing and Craigslist. Petzey reserves the right to deactivate or invalidate any Petzey Code at any time in Petzey’s sole discretion.
From time to time, Petzey may offer you incentives to refer your friends and family to become new Users of the Petzey Platform (the “Referral Program”). These incentives may come in the form of Petzey Credits or other benefits offered by a Petzey partner, and Petzey may set or change the incentive types, amounts, terms, restrictions, and qualification requirements for any incentives in its sole discretion. Your distribution of Petzey Codes and participation in the Referral Program is subject to this Agreement and any Referral Program rules.
10. Restricted Activities
With respect to your use of the Petzey Platform and your participation in the Services, you agree that you will not:
- impersonate any person or entity;
- stalk, threaten, or otherwise harass any person;
- violate any law, statute, rule, permit, ordinance or regulation;
- interfere with or disrupt the Petzey Platform or the servers or networks connected to the Petzey Platform;
- post Information or interact on the Petzey Platform or Services in a manner which is fraudulent, libelous, abusive, obscene, profane, sexually oriented, harassing, or illegal;
- use the Petzey Platform in any way that infringes any third party’s rights, including: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- post, email or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Petzey Platform;
- “frame” or “mirror” any part of the Petzey Platform, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other web site for any purpose;
- modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Petzey Platform or any software used on or for the Petzey Platform;
- rent, lease, lend, sell, redistribute, license or sublicense the Petzey Platform or access to any portion of the Petzey Platform;
- use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Petzey Platform or its contents;
- link directly or indirectly to any other web sites;
- transfer or sell your User account, password and/or identification to any other party
- discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or
- cause any third party to engage in the restricted activities above.
11. Veterinary Professional Representations, Warranties and Agreements
By providing Services as a VP on the Petzey Platform, you represent, warrant, and agree that:
- You are either a duly licensed veterinarian or certified veterinary technician, in good standing, and have all appropriate licenses, approvals and authority to provide Services in all jurisdictions in which you provide Services.
- You are fully familiar with all applicable laws and regulations relating to the practice of veterinary medicine and telemedicine including but not limited to those relating to the requirement for a valid Veterinary Client Patient Relationship and will at all times ensure the Services you provide comply with all such laws and regulations. You at all times will comply with all statutes, regulations, and guidelines related to the practice of veterinary medicine including, without limitation, the veterinary medicine practice act in your state as well as the Principles of Veterinary Medical Ethics of the American Veterinary Medical Association.
- You will not violate any laws of any kind whatsoever in connection with the provision of Services, including but not limited to laws relating to the practice of veterinary medicine.
- You will not attempt to defraud Petzey or Pet Parents on the Petzey Platform or in connection with your provision of Services. If we suspect that you have engaged in fraudulent activity we may withhold applicable fees or other payments for the Services(s) in question.
- You agree that we may obtain information about you, including your veterinary licenses, education, employment records, and professional liability insurance and you agree to provide any further necessary authorizations to facilitate our access to such records during the term of the Agreement, as set forth below in Section 15, or at any time during your engagement as a VP.
- You are covered by a valid policy of professional liability that will cover your provision of Services at all times.
- You will pay all applicable federal, state and local taxes based on your provision of Services and any payments received by you.
12. Intellectual Property
All intellectual property rights in the Petzey Platform shall be owned by Petzey absolutely and in their entirety. These rights include database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Petzey Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, pictures, videos, or other information or media (“Submissions”) provided by you to us are non-confidential and shall become the sole property of Petzey. Petzey shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
PETZEY and other Petzey logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of Petzey in the United States and/or other countries (collectively, the “Petzey Marks”). If you provide Services as a VP, Petzey grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the Petzey Marks solely in connection with providing the Services through the Petzey Platform (“License”). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without Petzey’s prior written permission, which it may withhold in its sole discretion. The Petzey Marks may not be used in any manner that is likely to cause confusion.
You acknowledge that Petzey is the owner and licensor of the Petzey Marks, including all goodwill associated therewith, and that your use of the Petzey Marks will confer no additional interest in or ownership of the Petzey Marks in you but rather inures to the benefit of Petzey. You agree to use the Petzey Marks strictly in accordance with Petzey’s Trademark Usage Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that Petzey determines to be nonconforming or otherwise unacceptable.
You agree that you will not: (1) create any materials that use the Petzey Marks or any derivatives of the Petzey Marks as a trademark, service mark, trade name or trade dress, other than as expressly approved by Petzey in writing; (2) use the Petzey Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the Petzey Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair Petzey’s rights as owner of the Petzey Marks or the legality and/or enforceability of the Petzey Marks, including, challenging or opposing Petzey’s ownership in the Petzey Marks; (4) apply for trademark registration or renewal of trademark registration of any of the Petzey Marks, any derivative of the Petzey Marks, any combination of the Petzey Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the Petzey Marks; or (5) use the Petzey Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
Violation of any provision of this License may result in immediate termination of the License, in Petzey’s sole discretion. If you create any materials bearing the Petzey Marks (in violation of this Agreement or otherwise), you agree that upon their creation Petzey exclusively owns all right, title and interest in and to such materials, including any modifications to the Petzey Marks or derivative works based on the Petzey Marks. You further agree to assign any interest or right you may have in such materials to Petzey, and to provide information and execute any documents as reasonably requested by Petzey to enable Petzey to formalize such assignment.
You will defend, indemnify, and hold
(i) Petzey including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders, and
(ii) any employer or other entity (for example, without limitation, a sales agent or social influencer) that promotes the use of the Service as an employee benefit or otherwise
harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the Petzey Platform and participation in the Services, including without limitation: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or regulation, including without limitations as it relates to VPs, laws and regulations relating to the practice of veterinary medicine and veterinary telemedicine; (3) your violation of rights of a third party, including, VPs and Pet Parents as a result of your own interaction with such third party; (4) any allegation that any materials that you submit to us or transmit through the Petzey Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (5) as it relates to VPs any allegation that the Services were improperly rendered or failed to meet a particular standard; and/or (6) any other activities in connection with the Services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
14. Limitation of Liability
IN NO EVENT WILL PETZEY, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “PETZEY” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE PETZEY PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE PETZEY PLATFORM, THE SERVICES, OR THIS AGREEMENT, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PETZEY PLATFORM MAY BE USED BY YOU TO REQUEST AND SCHEDULE CONSULTATION SERVICES, GOODS, OR OTHER SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT PETZEY HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY CONSULTATION Services, Veterinary SERVICES, GOODS OR OTHER SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
15. Term and Termination
This Agreement is effective upon your creation of a User account. This Agreement may be terminated: a) by User, without cause, upon seven (7) days’ prior written notice to Petzey; or b) by either Party immediately, without notice, upon the other Party’s material breach of this Agreement, including but not limited to any breach of Section 10 or breach of Section 11(a) through (h) of this Agreement. In addition, Petzey may terminate this Agreement or deactivate your User account immediately in the event: (1) as it relates to VPs, you no longer qualify to provide Services in Petzey’s sole discretion ; (2) as it relates to VPs, you fall below Petzey’s star rating or cancellation threshold; (3) as it relates to all Users, Petzey has the good faith belief in its sole discretion that such action is necessary to protect the safety or goodwill of the Petzey community or third parties.
16. DISPUTE RESOLUTION AND ARBITRATION AGREEMENT
(a) Agreement to Binding Arbitration Between You and Petzey.
YOU AND PETZEY MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with Petzey ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and Petzey, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders. This Arbitration Agreement also applies to claims between you and Petzey’s service providers, including but not limited to background check providers and payment processors; and such service providers shall be considered intended third party beneficiaries of this Arbitration Agreement.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND PETZEY. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Petzey Platform, the Services, any other goods or services made available through the Petzey Platform, your relationship with Petzey, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, background checks performed by or on Petzey’s behalf, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Petzey, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Petzey and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND PETZEY ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
(b) Prohibition of Class Actions and Non-Individualized Relief.
YOU UNDERSTAND AND AGREE THAT YOU AND PETZEY MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND PETZEY BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING.
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or 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 claims.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining claims and may be brought in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(c) Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Petzey will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or 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 claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Pet Parents or VPs, but is bound by rulings in prior arbitrations involving the same Pet Parents or VPs to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
(d) Location and Manner of Arbitration.
Unless you and Petzey agree otherwise, any arbitration hearings between Petzey and a Pet Parent will take place in the county of your billing address, and any arbitration hearings between Petzey and a VP will take place in the county in which the VP provides Services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. If your Claim is for $10,000 or less, Petzey agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
(e) Exceptions to Arbitration.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 16(c) of such action is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the FAA; (3) claims for workers’ compensation, state disability insurance and unemployment insurance benefits; and (4) claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board (“NLRB”), or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration However, should you bring an administrative claim, you may only seek or recover money damages of any type pursuant to this Arbitration Provision, and you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint, except for a complaint issued by the NLRB. Should you participate in an NLRB proceeding, you may only recover money damages if such recovery does not arise from or relate to a claim previously adjudicated under this Arbitration Provision or settled by you. Similarly, you may not recover money damages under this Arbitration Provision if you have already adjudicated such claim with the NLRB. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
In the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(g) Optional Pre-Arbitration Negotiation Process.
Before initiating any arbitration or proceeding, you and Petzey may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for thirty (30) days, unless this time period is mutually extended by you and Petzey. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Negotiation Notice”). The Negotiation Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to Petzey’s business, operations and properties, and information about a User made available to you in connection with such User’s use of the Platform (“Confidential Information”) disclosed to you by Petzey for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Petzey in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to Petzey with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by Petzey or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of Petzey; becomes known to you, without restriction, from a source other than Petzey without breach of this Agreement by you and otherwise not in violation of Petzey’s rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to Petzey to enable Petzey to seek a protective order or otherwise prevent or restrict such disclosure.
18. Relationship with Petzey
As a VP on the Petzey Platform, you acknowledge and agree that You and Petzey are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. You and Petzey expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and Petzey; and (2) no joint venture, franchisor-franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind Petzey, and you undertake not to hold yourself out as an employee, agent or authorized representative of Petzey.
Petzey does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Services, your acts or omissions. You retain the sole right to determine when, where, and for how long you will utilize the Petzey Platform. You retain the option to accept or to decline or ignore a Pet Parent’s request for Services via the Petzey Platform, or to cancel an accepted request for Services via the Petzey Platform, subject to Petzey’s then-current cancellation policies. With the exception of any signage required by law or permit/license rules or requirements, Petzey shall have no right to require you to: (a) display Petzey’s names, logos or colors on your vehicle(s); or (b) wear a uniform or any other clothing displaying Petzey’s names, logos or colors. You acknowledge and agree that you have complete discretion to provide Services or otherwise engage in other business or employment activities.
19. Other Services
In addition to connecting Pet Parents with VPs, the Petzey Platform may enable Users to provide or receive goods or services from other third parties. For example, Users may be able to use the Petzey Platform to purchase a goods and services (e.g. pet supplies) or order a delivery of goods through ride share (collectively, the “Other Services”). You understand and acknowledge that the Other Services are subject to the terms and pricing of the third-party provider. If you choose to purchase Other Services through the Petzey Platform, you authorize Petzey to charge your payment method on file according to the pricing terms set by the third-party provider plus a processing fee as quoted to you at the time you make such a request. You agree that Petzey is not responsible and may not be held liable for the Other Services or the actions or omissions of the third-party provider. Such Other Services may not be investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and Petzey is not responsible for any Other Services accessed through the Petzey Platform.
Except as provided in Section 16, this Agreement shall be governed by the laws of the State of Texas without regard to choice of law principles. This choice of law provision is only intended to specify the use of Texas law to interpret this Agreement and is not intended to create any other substantive right to non-Texans to assert claims under Texas law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non- binding, the parties shall remain bound by all other provisions of this Agreement. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement. You agree that this Agreement and all incorporated agreements may be automatically assigned by Petzey, in our sole discretion by providing notice to you. You agree that you may not assign this Agreement, in whole or in part. Except as explicitly stated otherwise, any notices to Petzey shall be given by certified mail, postage prepaid and return receipt requested to Petzey Technology Inc., 550 North Central Expressway, #726, McKinney, TX 75070. Any notices to you shall be provided to you through the Petzey Platform or given to you via the email address or physical address you provide to Petzey during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. The words “include”, “includes” and “including” are deemed to be followed by the words “without limitation”. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and Petzey with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.
If you have any questions regarding the Petzey Platform or Services, please contact our Petzey Support Team at firstname.lastname@example.org
Services Fee Schedule
Pet Parent Charges for each consultation Service* $ 20.00
*Each consultation Service limited to one pet
Petzey VP Addendum
Last Updated: January 29, 2020
This Petzey VP Addendum is an addendum to the Agreement between you and Petzey and it sets forth additional terms and conditions that are applicable to your provision of Services through the Petzey Platform. Capitalized terms herein have the meaning set forth in the Agreement. This addendum replaces and supersedes any prior VP Addendum that you have previously agreed to.
VP Fee. You are entitled to a VP Fee for the consultation Services you perform for Pet Parents, as provided in the Agreement and this VP Addendum. The “VP Fee” for completed Services is as set forth on the Petzey VP Fee Schedule (the “VP Fee Schedule”) attached hereto. You agree Petzey makes no representation or warranties concerning the VP Fee Schedule amounts. Your VP Fee Schedule amounts are subject to change in Petzey’s discretion and any changes shall be published on the VP Fee Schedule. By continuing to use the Petzey Platform, you are deemed to accept these changes.
Additional Payments to You. In the event you facilitate the sale of third party goods or services to a Pet Parent in connection with the provision of Services for which Petzey has established a marketing or similar arrangement (a “Qualifying Order”) and Petzey receives a commission from such the third party provider of such goods or services specific to that Qualifying Order, you will receive a one-time fee reflecting the applicable share of the commission received by Petzey specific to the Qualifying Order (net of any adjustments) the “Share” as is set forth on the VP Fee Schedule. Re-orders for goods and services by the Pet Parent do not constitute a Qualifying Order.
Payments, Adjustments and Settlement. Petzey will collect payments owed to you by Pet Parents and other third parties as your limited payment collection agent and you agree that the receipt of such payments by Petzey satisfies the payer’s obligation to you. Petzey reserves the right to adjust or withhold all or a portion of a VP Fee or other payment owed to you (i) if we believe that you have attempted to defraud or abuse Pet Parents, Petzey or Petzey’s payment systems, (ii) in order to resolve a Pet Parent complaint, or (iii) to reflect any adjustments in the Share of commission as a result of returns or other reasons. Petzey’s decision to adjust or withhold the VP Fee or other payment in any way shall be exercised in a reasonable manner. We will use reasonable efforts to ensure that your VP Fee will be paid to you on at least a weekly basis. The Share of commission from Qualifying Orders will be paid within thirty (30) days of Petzey’s receipt of the commission with respect to the Qualifying Order. You acknowledge and agree that all payments owed to you shall not include any interest and will be net of any amounts that we are required to withhold by law.
Pet Parent Charges. Petzey will charge the Pet Parent an amount calculated or determined by Petzey on your behalf for the Services (the “Pet Parent Charges”). Unless we indicate to you otherwise, the Pet Parent Charges includes the VP Fee, and other applicable fees retained by us (including the Petzey Platform Fee described below), and any Third Party Fees. “Third Party Fees” include any applicable fees, or any state or local fees, surcharges or taxes imposed on the provision of Services or Petzey’s provision of the Petzey Platform that Petzey is required by law or agreement to collect and remit to third parties.
Petzey Platform Fees. In exchange for your use of the Petzey Platform and the services provided by Petzey to you, you agree to pay Petzey (and permit Petzey to retain) a fee (the “Petzey Platform Fee”) based on each consultation Service you provide. The Petzey Platform Fee shall be a set amount for each consultation Service as set forth in your VP Fee Schedule at the time of the consultation Service. For the avoidance of doubt, as it relates to each Service, you shall receive from Petzey the VP Fee and Petzey shall retain the Petzey Platform Fee.
Payment Processing. Payment processing services are provided by Stripe and subject to the Stripe Connected Account Agreement (available at https://stripe.com/us/connect-account/legal), which includes the Stripe Services Agreement (available at https://stripe.com/us/legal) (collectively, the “Stripe Terms”). By using the Petzey Platform to receive payment proceeds, you agree to be bound by the Stripe Terms, which may be modified from time to time. As a condition of Petzey enabling payment processing services through Stripe, you authorize Petzey to obtain all necessary access and perform all necessary activity on your Stripe Connected Account to facilitate your provision of Services as contemplated by the Agreement and your relationship with Petzey. You further agree to provide accurate and complete information about you and your business, and authorize Petzey to share it and transaction information with Stripe for the purposes of facilitating of the payment processing services provided by Stripe. Petzey reserves the right to switch payment processing vendors or use alternate or backup vendors in its discretion.
Promotions and Coupons. Petzey may, at its discretion, offer promotional or other Coupons to Pet Parents, however such discounts shall not impact the VP Fee or any other payments owed to you.
No Additional Amounts. You acknowledge and agree that, for the mutual benefit of the parties, through advertising and marketing, Petzey and its affiliates may seek to generate additional demand for your Services from new and existing Pet Parents. You acknowledge and agree such advertising or marketing does not entitle you to any additional monetary amounts beyond the amounts expressly set forth in this Agreement and VP Addendum.
ATTACHMENT A TO VP ADDENDUM
VP FEE SCHEDULE
Pet Parent Charges for each consultation Service $ 20.00
- VP Fee $ 15.00*
- Petzey Platform Fee $ 5.00
*The VP agrees that Petzey may collect from the VP a $1.00 transaction fee to offset payment processing fees incurred by Petzey from the third party payment processors (the “Transaction Processing Fee”). The VP authorizes Petzey to set off the Transaction Processing Fee from the VP Fee.
Share of commission on Qualifying Orders 50%