These updated Terms of Service will take effect on Sept. 30, 2019 for users who signed up for a Wag! account prior to Aug. 5, 2019 and are effective immediately for all other users. If you signed up for a Wag! account prior to Aug. 5, 2019, our prior Terms of Service will continue to apply until Sept. 30, 2019. After that date, your continued use of Wag! will be subject to these updated Terms of Service.
Updated: August 5, 2019
These Terms of Service (“Terms”) govern your use of the Wag! website, any Wag! mobile application, application programming interfaces, content, products and other services offered by Wag!, as well as Wag! services offered through third parties integrating Wag! functionality (collectively, the “Services”). Wag! Labs, Inc. (“Wag!”, “Company”, “we” or “us”) provides the Services. “You” refers to you as a user of the Services.
THE DISPUTE RESOLUTION SECTION IN SECTION 22 OF THESE TERMS CONTAINS A MUTUAL ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT REQUIRES YOU AND WAG! TO RESOLVE DISPUTES WITH EACH OTHER ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. PLEASE REVIEW THE DISPUTE RESOLUTION SECTION OF THESE TERMS CAREFULLY. BY ENTERING INTO THESE TERMS, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
The Services includes a marketplace technology platform that enables third-party pet owners (“Pet Owners”) and third-party pet care service providers (“Pet Care Providers”) to connect with each other. However, Wag! has no control over the conduct of Pet Care Providers or any other users of the Services. YOU ACKNOWLEDGE AND AGREE THAT WAG! IS A TECHNOLOGY SERVICES PROVIDER THAT DOES NOT PROVIDE PET CARE SERVICES.
1. Acceptance of these Terms
By entering into these Terms, and/or by using or accessing the Services, you expressly acknowledge that you understand these (including the dispute resolution and arbitration provisions below) and accept all of its terms. BY USING THE SERVICES, YOU ARE AGREEING TO THESE TERMS. PLEASE READ THEM CAREFULLY. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THESE TERMS, YOU MAY NOT USE OR ACCESS THE SERVICES.
2. Changes to these Terms
Wag! may, in its sole discretion, amend the Terms and modify or update the Services from time to time. If we change these Terms, we will give you notice by posting the revised Terms on the Services. Please review this page periodically to ensure you are up-to-date with any changes. Those changes will go into effect on the revision date shown in the revised Terms. Your continued use of the Services will constitute your acceptance of the amended Terms.
3. Additional Terms
4. Your Consent to Receive Calls, Text Messages, Emails and Other Communications
You expressly consent to receive and accept communications from Wag!, our Affiliates (as defined below) and their respective representatives, including via e-mail, telephone calls and text messages (including by an automatic telephone dialing system or a prerecorded voice), push notifications or other comparable means at any of the e-mail addresses and/or telephone numbers provided by you or on your behalf to Wag!. You agree that the foregoing authorized communications may be initiated for any transactional, customer service, advertising, marketing, promotional, debt collection, account administration or other purposes. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PRERECORDED OR AUTODIALED PROMOTIONAL, ADVERTISING OR MARKETING (COLLECTIVELY, “MARKETING”) CALLS OR TEXT MESSAGES AS A CONDITION OF PURCHASING ANY PROPERTY, GOODS OR SERVICES. IF YOU WISH TO OPT OUT OF MARKETING CALLS, EMAILS OR TEXT MESSAGES FROM US, YOU AGREE TO OPT OUT BY FOLLOWING ANY UNSUBSCRIBE INSTRUCTIONS PROVIDED TO YOU IN THOSE COMMUNICATIONS OR BY CONTACTING CUSTOMER SUCCESS AT (628) 400-4426, (855) 732-9513 OR [email protected] If you receive a marketing call from Wag!, you also may opt-out of receiving future marketing calls by communicating a do-not-call request to our representative before you hang up. You agree that Wag! and our Affiliates and representatives will not be responsible for honoring opt-out requests communicated through other channels. If you wish to register an account with Wag! without agreeing to receive autodialed or prerecorded marketing calls or text messages from Wag! and our Affiliates, contact a Customer Success representative for assistance at (628) 400-4426, (855) 732-9513 or [email protected] Standard text messaging and data charges charged by your wireless service carrier will apply to text messages we may send. You represent and warrant that you are authorized to approve the receipt of calls and text messages at any telephone number you provide to us in connection with your account or your use of our Services and to approve any related carrier charges. PLEASE BE ADVISED THAT IF YOU OPT OUT OF MARKETING COMMUNICATIONS, WAG! MAY STILL SEND YOU COMMUNICATIONS ABOUT YOUR ACCOUNT OR ANY TRANSACTIONS BETWEEN YOU, WAG! AND/OR OTHER USERS OF THE PLATFORM, INCLUDING THE SERVICES YOU PROVIDE TO OR OR RECEIVE FROM OTHER USERS OF THE PLATFORM. YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING TEXT MESSAGES OR OTHER COMMUNICATIONS MAY IMPACT YOUR USE OF THE SERVICES.
You must be at least 18 years old to use the Services. If you are under the age of majority in your state of residence or a minor, your parent or legal guardian must agree to these Terms on your behalf and you may only access and use the Services with permission from your parent or legal guardian.
6. Wag! as a Marketplace Technology Platform
The Services includes a marketplace technology platform that connects Pet Care Providers with Pet Owners. We do not provide any pet care services and make no representations or warranties about the quality of dog walking, boarding, sitting, transportation or other services provided by Pet Care Providers, or about your interactions and dealings with Pet Care Providers or other users. Wag! does not employ, recommend or endorse Pet Owners or Pet Care Providers, and we are not responsible or liable for the performance or conduct of Pet Owners or Pet Care Providers, whether online or offline.
Wag! provides Pet Care Providers with access to third-party vendors that perform background checks and verifications. Wag! itself does not conduct background checks and does not independently verify information in the background checks. Wag! is not responsible or liable in any manner for the background checks.
7. Payment Terms for Pet Owners
As a Pet Owner, you understand that use of the Services may result in you owing fees to the Pet Care Provider for the pet care services you receive from such Pet Care Provider. Wag! will facilitate your payment of the applicable charges on behalf of the Pet Care Provider through third-party payment processors, with whom you will be required to establish an account to access the Services. Payment of such charges in such manner shall be considered the same as payment made directly by you to the Pet Care Provider. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable regardless of your decision to terminate usage of the Services, Wag!’s decision to terminate your usage, any disruption of the Services or any other reason whatsoever, unless otherwise determined by Wag!.
All charges are due immediately and Wag!, or a third-party payment processor, will process your payment on the Pet Care Provider’s behalf using the primary payment method designated by you in your Wag! account. If your primary payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Wag! may, as the Pet Care Provider’s limited payment collection agent, use a secondary payment method in your account, if available.
Once you request a pet care service, you agree to pay the Pet Care Provider the agreed-to price and honor the other terms of such booking. You may elect to cancel your request for services from a Pet Care Provider at any time prior to such Pet Care Provider’s arrival, in which case you are subject to a cancellation fee.
The fees owed to Pet Care Providers are not inclusive of tip or gratuity for the Pet Care Provider. While you are free to provide gratuity to any Pet Care Provider who provides you with services obtained through the Services, you are under no obligation to do so. After you have received services or goods obtained through the Services, you will have the opportunity to rate your experience and leave additional feedback about your Pet Care Provider.
In addition to the above fees, you understand and acknowledge that you may incur ancillary charges in connection with your receipt of pet care services from Pet Care Providers (“Charges”). Such Charges may include some combination of the following: (1) cancellation fee, (2) service fee, (3) trust and safety fee, (4) surcharges, (5) convenience fee, and (6) other fees. A description of any Charges will be available on the Services. You have absolute discretion to request or not request services from a Pet Care Provider if the total applicable fee or charge is not acceptable to you.
From time to time, Wag! may, in its sole discretion, make available certain promotions, offers, credits, rewards, subscriptions or referrals links or codes to Pet Owners (the “Promotions”). Such Promotions will be provided to Pet Owners via the Services, by email or otherwise made available electronically by Wag!. Such Promotions are only valid for redemption through the Services and are not transferable or redeemable for cash except as required by law. Each Promotion is a limited time offer and is valid only for the time and purpose and under the terms and conditions specified therein, which may include eligibility, time and location requirements. Wag!, at its sole discretion, reserves the right to issue Promotions with different features, discounts, offers or deals to any users or groups of users determined solely by Wag!. These Promotions, unless made to you, shall have no bearing whatsoever on your use of the Services, or any Promotions offered to you. Wag! reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promotions that was made in error or fraudulent or where illegal behavior was detected, or the Pet Owner was found to be in violation of the terms of such Promotion, these Terms or the Additional Terms. Promotions may be modified, disabled or withdrawn by Wag! at any time for any reason or no reason without liability to Wag!.
You acknowledge and agree that Wag! may limit or temporarily or permanently suspend your use of or access to the Services if: (1) you have provided inaccurate, fraudulent, outdated or incomplete information regarding a payment method, (2) any amounts you owe for pet care services are overdue or in default, or (3) Wag! believes in good faith that such action is reasonably necessary to protect the personal safety or property of Wag!, our users, any third-party payment processor or third parties, or to prevent fraud or other illegal activity.
8. Acceptable Use of the Services
You are responsible for your use of the Services, and for any use of the Services made using your account. Our goal is to create a positive, useful and safe user experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users, third parties or to us. When you use the Services, you may not:
• violate any law or regulation or use the Services for any unintended purposes;
• violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
• provide false information in your profile on, or registration for, the Services;
• post or share anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;
• send unsolicited or unauthorized advertising or commercial communications, such as spam;
• engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from the Services;
• transmit any viruses, malicious codes or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
• stalk, harass, or harm another individual;
• impersonate any person or entity, maintain more than one account (or, if Wag! suspends or terminates your account, create further accounts) or perform any other fraudulent activity, such as phishing, marketplace collusion, promotional abuse, and payment fraud;
• use any means to scrape or crawl any Web pages contained in the Services;
• use the Services to identify Pet Care Providers to complete off-line transactions that circumvent your payment obligations for the Services;
• use the Services for purposes of competing with Wag!;
• authorize other users to use your user status or transfer your account to any other person or entity;
• attempt to circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Services;
• interfere with Wag!’s provision of, or any other user’s use of, the Services;
• attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Services;
• solicit another user’s username and password for the Services;
• post reviews about Pet Care Providers that are not based on your personal experience, that are intentionally inaccurate, or that violate these Terms or Additional Terms;
• use the Services to arrange for the care of exotic, non-domesticated or inherently dangerous pets, pets with a history of attacks on animals or people, or any other pets not specifically contemplated by the Services; or
• advocate, encourage, or assist any third party in doing any of the foregoing.
9. User Content
The Services allow you to upload, submit, store, send, or receive content and data (“User Content”). You retain ownership of any intellectual property rights that you hold in that User Content. In other words, you own your personal data.
When you upload, submit, store, send, or receive User Content to or through the Services, you give us permission to reproduce and use your User Content as follows: you grant to us and those we work with a license to use, host, store, reproduce, modify, create derivative works (including, but not limited to, translations, adaptations, or other changes we make so that User Content works better with the Services), publicly perform, publicly display, and distribute your User Content in order to operate, promote, market and improve our Services. Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes. This license is irrevocable, sublicensable, fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your User Content. We may exercise our rights under this license anywhere in the world. Lastly, this license is perpetual, meaning that our rights under this license continue even after you stop using the Services. In general, however, we will only need to use your User Content for as long as you choose to store it with us using the Services.
You promise that:• you own all rights to your User Content or, alternatively, that you have the right to give us the rights described above (including having the necessary consents and releases from any individuals who appear or whose pets appear in your User Content); and
• your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.
We may refuse to accept or transmit User Content for any reason. We reserve the right to use, share and display your User Content (including Pet Owners’ reviews of Pet Care Providers) or Pet Care Providers’ reviews of Pet Owners or their pet(s) in any manner in connection with our business without attribution to you or your approval. You acknowledge and agree that we are distributors (without any obligation to verify) and not publishers of your User Content or Pet Care Providers’ reviews, and we reserve the right to monitor, screen, edit or remove your User Content or Pet Care Providers’ reviews in the event that such content include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws or Company’s content policies. Our failure to enforce our rights under these Terms in one instance does not create a waiver of your right to enforce them in another instance. We are not obligated to provide you with copies of your User Content, nor will we have any liability to you for any deletion, disclosure, loss or modification to your User Content.
If you include your name, image, likeness or voice in any of your User Content, you grant us permission to use your name, image, voice, and likeness, and hereby release us from any liability arising from such use, including, without limitation, claims for invasion of privacy, infringement of your right of publicity, and defamation (including libel and slander).
Wag! offers an in-app chat feature to better connect Pet Owners with Pet Care Providers. Data and content sent through the chat feature is User Content that is subject to these Terms. We are able to access this User Content and reserve the right (but have no obligation) to monitor, screen, edit or remove your User Content. Users should be mindful when communicating information to third parties, and we recommend that you refrain from disclosing or sending sensitive information through the chat feature, such as personal financial information, log-in account information and passwords, and/or personal contact information (including phone numbers).
10. Consent to Pet Care Provider Photo and Video Activities
As a Pet Owner, you understand and agree that certain Pet Care Providers may take pictures, videos, and other forms of recorded media of your pet during the course of providing services to you. You further understand and agree that Pet Care Providers may post, upload, share, store, or otherwise provide any such pictures, videos, or other forms of recorded media to Wag! through the Services or to their own social media, the Internet or otherwise. You understand and agree that such recorded media may be used not only to provide information to you as part of the Services, but also to assist Wag! in quality control, safety, and promotional and marketing activities. You agree that you have no right, title, or other ownership interest to or in such pictures, videos, or other forms of recorded media, and that the use of such media, including the posting or display of such media, is within Wag!’s and Pet Care Providers’ sole discretion. Wag! hereby grants you a limited, revocable, non-exclusive license to copy and use pictures, videos and other forms of recorded media of your pet that are made available by Wag! through the Wag! Services, solely for non-commercial purposes (e.g., posting a photo on your social media accounts).
11. Pet Owner Obligations
As a Pet Owner, you hereby represent, covenant, and warrant to Wag! and each Pet Care Provider who provides you with pet care services that: (1) the pet(s) that you request pet care services for are your own; (2) your pets are free from fleas, ticks, and other pests; (3) you have divulged any material information about your pets, including pre-existing medical conditions and other behavioral issues that may be relevant to or impact a Pet Care Provider’s ability to provide the Services; (4) you will have your pets fully vaccinated and up to date on all forms of preventative medicine prior to receiving services from a Pet Care Provider; and (5) you will comply with all laws and ordinances applicable to your activities conducted through the Services, including ensuring your pet is licensed as required by local law. If you elect to use the Services, you agree to provide accurate information about yourself and your pet and keep this information up-to-date, including any material information or medical data of your pet.
You acknowledge and agree that if you allow another person to access your account or if you request a pet care service for a pet that is not your own, in each case in violation of these Terms, you and such other person will be jointly and severally liable for all acts and omissions in connection with engaging the Services, including all costs incurred or associated with such engagement.
You are fully responsible for the actions of your pet(s). You understand, acknowledge and agree that, as between you and Wag!, you shall be liable for any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any kind or nature, arising from or relating to, the behavior of your pet(s), including without limitation, claims by third parties (including Pet Care Providers) for damage, loss or injuries resulting from bites or attacks on such third parties by your pet(s). Incidents, injury, damage or loss caused by your pet may be governed by applicable state liability laws. Wag! will cooperate with appropriate law enforcement authorities to provide requested information regarding the situation. If you elect to use a Pet Care Provider through the Services, you shall carry applicable liability insurance sufficient for the pet care services you request, the risks associated with such services and as mandated by law. Be sure to review your applicable policy(ies) and address any questions regarding appropriate liability coverage with your insurance carrier and/or legal representatives prior to utilizing a Pet Care Provider through the Services.
You may request a lockbox to store a key for entrance to your home or apartment for use in connection with the Services. You understand, acknowledge and agree that we are not liable for any loss, claims or damages you may suffer as a result of your use of the lockbox, including situations where the lockbox may be illegally accessed by a third party.
Pet Care Providers have the sole and absolute discretion to reject or refuse any pet care services that you may request if they violate any law or regulation, are dangerous or unsafe or otherwise violate these Terms or the Additional Terms. If you choose to provide equipment to Pet Care Providers, Pet Care Providers have the right to refuse a pet care service that involves a retractable leash, which can be dangerous for dogs and Pet Care Providers alike and may cause a safety hazard. You acknowledge and agree that you will assume all liability in connection with providing a retractable leash. In addition, all dog walking services that you request should not be off-leash. Please note that for safety reasons, puppies that are 6 months or younger may be restricted from certain types of services offered via the Wag! platform or be subject to limited service offerings tailored specifically to puppies.
Pet Owners who arrange for pet care services and fail to retrieve their pet within three (3) days after the service period (or an earlier period required under applicable animal abandonment or cruelty laws) agree that Wag! (or the Pet Care Provider) may, in its (or his or her) sole discretion, place the pet in foster care and/or notify animal control authorities. Pet Owner agrees to reimburse Wag! and/or the Pet Care Provider for all costs and expenses associated with such actions.
If your Pet Care Provider or Wag! reaches you with a request to authorize medical care for your pet and you refuse, you waive, release and promise never to assert any claims or causes of action arising from failure to seek such care, whether or not now known, against Wag! or its predecessors, successors or past or present subsidiaries, stockholders, directors, officers, employees, consultants, attorneys, agents, assigns or the applicable Pet Care Provider with respect to any matter, including (without limitation) any claims of negligence, emotional distress, fraud, breach of contract, or breach of the covenant of good faith and fair dealing. You expressly waive and release any and all rights and benefits under Section 1542 of the California Civil Code (or any analogous law of any other state), which reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” In the unlikely case that your pet needs immediate medical attention or veterinary care, you hereby authorize your Pet Care Provider and Wag! to obtain and authorize the provision of veterinary care for your pet if you cannot be reached to authorize care yourself in an emergency situation. Pet Owners are solely responsible for the costs of any such medical treatment for your pets and, if you are a Pet Owner, you hereby authorize Wag! to charge any of your payment methods for such costs.
As a Pet Owner, you acknowledge that Wag! is in the business of connecting Pet Owners and Pet Care Providers, and that said business is how Wag! earns its income. As a result, Pet Owner agrees that if Pet Owner solicits a Pet Care Provider to provide off-platform pet care services to Pet Owner whom Pet Owner first met and/or learned about through the Wag! platform, Wag! is entitled to charge both the Pet Owner and the Pet Care Provider a referral fee. This referral fee will be charged once per specific Pet Owner/Pet Care Provider services relationship utilized outside of the process provided for within the Wag! platform. Pet Owner’s referral fee will be $1,000. Pet Owner will first be notified in writing of Pet Owner’s obligation to pay the referral fee. Thereafter, Pet Owner hereby authorizes Wag! to charge any of your payment methods for the referral fee.
13. Copyright and Intellectual Property Policy
We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:
• Your address, telephone number, and email address.
• A description of the copyrighted work that you claim has been infringed.
• A description of where the alleged infringing material is located.
• A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law.
• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
• A statement by you, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
For clarity, only copyright infringement notices should be sent to our Copyright Agent at [email protected]. You acknowledge that if you fail to comply with all of the requirements of this section, your notice may not be valid.
If you believe the content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use such content, you may submit a counter-notice to the address listed above containing the following information:• Your physical or electronic signature;
• Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
• A statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content; and
• Your name, physical address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Los Angeles, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes your personal information. By submitting a counter-notification, you consent to having your information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send out the counter-notification, the claimant must then notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the content that was removed or disabled. If we receive such notification, we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.
14. Call Recording and Monitoring
You agree that all telephone conversations between you and Wag! (or our Affiliates and representatives), or other platform users when made via the platform, may be monitored and recorded for quality assurance and training purposes.
16. Third-Party Content
17. Third-Party Applications
These Terms apply to your use of the Services, including the Wag! applications (each an “Application”) made available by third-party providers such as Apple, Inc. and Google, Inc. (each a “Provider”) through their respective online stores, but the following additional terms also apply to each Application:• Both you and Wag! acknowledge that the Terms are concluded between you and Wag! only, and not with any Provider, and that a Provider is not responsible for the Services;
• The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
• You will only use the Application in connection with a Provider-branded device that you own or control and as permitted by the Provider’s usage rules set forth in its terms of service, except that such Application may be accessed and used by other accounts associated with the purchaser via family sharing or volume purchasing (if applicable);
• You acknowledge and agree that a Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
• In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify the Provider of such failure; upon notification, the Provider’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
• You acknowledge and agree that Wag!, and not the Provider, is responsible for addressing any claims you or any third party may have in relation to the Application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Wag!’s and not the Provider’s responsibility;
• You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party's intellectual property rights, Wag!, and not the Provider, will be solely responsible for the investigation, defense, settlement and discharge of any such infringement claim;
• You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
• Both you and Wag! acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use;
• Both you and Wag! acknowledge and agree that the Provider and its subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, the Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof;
• In the event you use the Application to provide you with real-time route guidance, YOUR USE OF THIS REAL TIME ROUTE GUIDANCE APPLICATION IS AT YOUR SOLE RISK. LOCATION DATA MAY NOT BE ACCURATE.
18. Third Party Beneficiaries
Pet Care Providers (when the Terms are agreed to between Wag! and a Pet Owner) and Pet Owners (when the Terms are agreed to between Wag! and a Pet Care Provider) are each a third-party beneficiary of these Terms, and that upon acceptance of these Terms, the Pet Care Provider or Pet Owner (respectively) will have the right (and will be deemed to have accepted the right) to enforce these Terms as the third-party beneficiary hereof, including without limitation the Arbitration Agreement & Waiver of Certain Rights.
19. Suspension and Termination
We reserve the right to not provide the Services to any person. We also reserve the right to suspend or terminate any user’s right to access the Services at any time, in our sole discretion, for any reason (or no reason at all), including, without limitation, with respect to Pet Owners, below average ratings or reviews of you by Pet Care Providers. If your conduct on the Services or with respect to the Services is inappropriate or unsafe or you violate any of these Terms or the Additional Terms, your permission to use the Services automatically terminates.
20. Disclaimer and Limitations on Our Liability
YOU USE THE SERVICES AT YOUR OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WAG! AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (“AFFILIATES”) DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
IN PARTICULAR, WAG! AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SERVICES, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SERVICES. WAG! AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (a) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY, INJURY TO ANY PETS OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (c) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SERVICES; (d) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SERVICES BY ANY THIRD PARTY; OR (e) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SERVICES.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES ARISING FROM DOING SO. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE. YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE SERVICES.
YOU FURTHER ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF YOUR PRIVACY, CONFIDENTIAL INFORMATION, DATA AND/OR CONTENT. WE HAVE NO OBLIGATION TO PROVIDE SECURITY. YOU SHALL HAVE SOLE RESPONSIBILITY FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, APPROPRIATENESS AND OWNERSHIP OF ALL OF YOUR DATA AND USER CONTENT THAT MAY APPEAR ON THE SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, COMPENSATORY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE’VE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR EXAMPLE, WE SHALL NOT BE RESPONSIBLE FOR YOUR CONDUCT OR ANY THIRD-PARTY CONDUCT, INCLUDING WITHOUT LIMITATION, BODILY INJURY, INJURY TO ANY PETS, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES THAT MAY RESULT FROM YOUR USE OF THE SERVICES, OR FOR ANY INTERACTIONS WITH OTHER USERS OF THE SERVICES, WHETHER ONLINE OR OFFLINE. FURTHER, YOU AGREE THAT IN NO EVENT WILL WE BE LIABLE FOR ANY LOSSES, DAMAGE OR HARM THAT ARISE OUT OF YOUR VIOLATION OF THESE TERMS OR ADDITIONAL TERMS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THESE TERMS, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES YOU HAVE ACTUALLY PAID TO US DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
You understand and agree that we have set our prices and entered into these Terms with you in reliance upon the limitations of liability set forth in these Terms, which allocate risk between us and form the basis of the bargain between the parties.
You agree to indemnify and hold harmless Wag! and its Affiliates from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any kind or nature, arising from or relating to, any (i) actual or alleged breach of these Terms or the Additional Terms by you or anyone using your account, including claims arising from a breach of any of the Pet Owner Obligations set forth in these Terms or Additional Terms; (ii) transactions, interactions or disputes with other users of the Services, whether online or offline; (iii) your misstatements, omissions, misrepresentations, or violation of applicable law; (iii) any of Your Content; (iv) any text messages or other communications that you initiate to other Users or to third parties through our Services; and (v) the actions of your pet(s), including any property damage or personal injury to third parties caused by your pet or pets under your care. YOU FURTHER AGREE THAT YOU WILL COOPERATE WITH US IN THE DEFENSE OF SUCH CLAIMS. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION UNDER THIS SECTION, AND YOU WILL NOT SETTLE ANY SUCH CLAIM OR MATTER WITHOUT OUR ADVANCE WRITTEN CONSENT.
22. Arbitration Agreement & Waiver of Certain Rights
For purposes of this Section 22 (“Arbitration Agreement”), references to “Wag!” include our Affiliates.
a. Applicability. You and Wag! agree that any dispute or claim arising out of or relating in any way to your use of the Services, these Terms, the Additional Terms or your receipt of any communications from Wag! will be resolved by binding arbitration on an individual basis, rather than in court, except that you may assert claims in small claims court if your claims qualify, remain in such court and advance solely on an individual basis. “Disputes” or “claims” under this provision shall 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: the Terms, the Additional Terms and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Services, any other goods or services made available through the Services, your relationship with Wag!, the threatened or actual suspension, deactivation or termination of your account with Wag!, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Wag!, any communications you receive from Wag!, any claims for 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, and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. Notwithstanding anything to the contrary herein, if you are an employee of Wag!, this Arbitration Agreement will not apply to any claims or disputes arising out of your employment relationship with Wag! and any such claims and disputes may be governed by separate agreements.
b. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. Any demand for arbitration by you must be delivered to General Counsel, Wag! Labs, Inc., 8560 W. Sunset Blvd., Suite 100, West Hollywood, CA 90069. The arbitration will be conducted by the American Arbitration Association (“AAA”), an established alternative dispute resolution provider, and conducted under AAA’s most current version of the Commercial Arbitration Rules and procedures available at https://www.adr.org/sites/default/files/CommercialRules_Web_FINAL_1.pdf. AAA’s rules are also available by calling AAA at 800-778-7879. If AAA is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay AAA’s filing, administrative, hearing and/or other fees and you cannot obtain a waiver from AAA, Wag! will pay them for you. In addition, Wag! will reimburse all such AAA’s filing, administrative, hearing and/or other fees for proceedings involving claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Wag! will not seek attorneys' fees and costs in arbitration unless the arbitrator determines your claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
c. Authority of Arbitrator. The arbitrator -- not a court -- shall have exclusive authority to (i) determine the scope and enforceability of these Terms (including this Arbitration Agreement), (ii) resolve any dispute related to the interpretation, applicability, enforceability or formation of these Terms (including this Arbitration Agreement), including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable, and (iii) resolve any disputes or controversies regarding or arising out of the applicability of these Terms, the Pet Care Provider Platform Use Agreement, and/or any other concurrent agreement, to any particular claim or dispute, consistent with the AAA Commercial Arbitration Rule R-7. The arbitration will decide the rights and liabilities, if any, of you and Wag!. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. 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 these Terms (including this Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. 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 Wag!.
d. Waiver of Jury Trial. YOU AND WAG! HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
e. Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE OR COLLECTIVE BASIS; ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE PARTY CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER PARTY. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the federal or state court located in Los Angeles County, California for adjudication before a judge, not a jury. All other claims shall be arbitrated.
f. 30-Day Right to Opt Out. You have the right to opt out of the provisions of these Terms that mandate arbitration by e-mailing a written notice of your decision to opt out to: [email protected], within 30 days after first becoming subject to a version of these Terms containing an arbitration provision. Your notice must include your name and address, your Wag! username (if any), the email address you used to set up your Wag! account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of arbitration, all other parts of this Agreement will continue to apply to you. With the sole exception of the Pet Care Provider Platform Use Agreement if you are a Pet Care Provider, opting out of arbitration has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with Wag!. If you are a Pet Care Provider, a timely opt out of the Arbitration Agreement in these Terms will also apply to the Mutual Arbitration Provision of the Pet Care Provider Platform Use Agreement, provided that the opt out would be timely under the terms of the Pet Care Provider Platform Use Agreement as well.
g. Survival of Arbitration Agreement. This Arbitration Agreement will survive the termination of your relationship with Wag!.
h. Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Wag! makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by emailing Wag! a notice of your rejection at the following address: [email protected]. Your rejection of any such changes shall not affect the enforceability of any version of this Arbitration Agreement, or of any other agreement to arbitrate, that you previously entered into with Wag!
23. Other Provisions
Under no circumstances will Wag! be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.
These Terms will be governed by and construed in accordance with the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any conflict of laws rules or provisions. In the event the Arbitration Agreement above is found not to apply to you or a particular claim or dispute, you agree that any action of whatever nature arising from or relating to these Terms or Services will be filed only in the state or federal courts located in Los Angeles County, California. You and Wag! consent and submit to the personal jurisdiction of such courts for the purposes of any such action and waive any rights to a trial before a jury.
If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions. The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future.
We may freely assign our rights and obligations under these Terms, including in connection with a merger, acquisition, reorganization, sale of assets or equity, or by operation of law. You may not assign any rights or obligations under these Terms without the prior written consent of Wag! and any purported assignment in violation of this provision shall be null and void.