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FETCHYFOX TERMS OF SERVICE

(Last Updated May 2018)

PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. IF YOU RESIDE IN THE UNITED STATES, PLEASE NOTE: SECTION 22 OF THESE TERMS OF SERVICE CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS HOW DISPUTES WITH FETCHYFOX ARE RESOLVED. BY ACCEPTING THESE TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. PLEASE READ IT CAREFULLY. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN THE ARBITRATION PROVISION BELOW.

  1. Acceptance of Terms

Welcome to FetchyFox!  FetchyFox, Inc. owns and operates the website www.fetchyfox.com and a mobile application, as well as other websites, mobile or touch applications we have now or in the future, (collectively, the “Site”), which connects consumers, retail stores, service providers and restaurants, with FetchyFox staff to facilitate services including, but not limited, to on-demand delivery services (the “Services”).   

Please read these Terms of Service (“Terms”) carefully. By using the Site or Services, you affirm that you have read and agree to comply with, and be legally bound by, each of the terms, conditions, and restrictions of these Terms.  Our Privacy Policy is at www.FetchyFox.com/privacy, and is incorporated by reference into these Terms. If you do not agree to these Terms, including our Privacy Policy, you have no right to obtain information from or otherwise continue using the Site or Services.

Individuals who use the Site are “Users”, and “you” and “your” refer to Users. If you access the Site or accept these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that legal entity and, in such event, “you” and “your” will refer to that legal entity.  “We”, “us”, or “our” refer to FetchyFox. In addition, in these Terms, unless the context requires otherwise, words in one gender include all genders and words in the singular include the plural and vice-versa.

THE SERVICE IS AN ONLINE PLATFORM THROUGH WHICH YOU MAY MAKE PURCHASES FROM PRODUCT OR SERVICE PROVIDERS USING OUR SITE AND OUR STAFF. IN DOING SO, WE ARE ACTING AS YOUR AGENT AND WE ARE NOT THE SELLER OF ANY PRODUCT.  YOU AGREE THAT WE ARE YOUR AGENT, THAT THE SELLER REMAINS THE MERCHANT OF RECORD, AND THAT TITLE TO ANY PRODUCT OR SERVICE PASSES FROM THE SELLER TO YOU AT THE TIME OF YOUR PURCHASE. FETCHYFOX IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN YOU AND A SELLER.

  1. Modification

FetchyFox reserves the right, at its sole discretion, to modify or discontinue, temporarily or permanently, the Site, Services or to modify these Terms at any time and without prior notice. If we modify these Terms, we will post the modification on the Site. We will also update the “Last Updated Date” at the top of these Terms. Modifications to these Terms will automatically take effect upon posting; provided, however, that material changes to the Terms will be effective as to an existing User thirty (30) days after posting. By continuing to access or use the Site after we have posted a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease accessing or using the Site and Services.

  1. Eligibility

The Services are intended solely for persons who are 18 or older. By accessing or using the Services you represent and warrant that you are not legally prohibited from accessing the Services under the laws of the country in which you access or use them.

  1. About the Service; Registration

The Service allows Users to access information and services from services providers, retailers, and restaurants regarding products, place orders, make purchases, and arrange for delivery of purchased products or services.  To access and use the Services, you must register an account (“User Account”). We offer two ways to create an account - direct registration using an email address, or registration via third party social networking sites.

Direct Registration: To create a User Account by using your email address, follow the prompts on the Site.  You agree to provide accurate, current and complete information during registration and to update such information to keep it accurate, current and complete. You agree that you will safeguard your password and that you are solely responsible for any activities or actions under your User Account, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your User Account.  You are solely responsible for your Content (defined below) and User Account.

Registration via Third Party: You may also create a User Account via certain third party service provider’s  social networking site including, but not limited to, Facebook (each such account, a “Third Party Account”) by following the prompts on the Site.  You represent that you are entitled to disclose your Third Party Account login information to us and to grant us access to your Third Party Account to provide the Services without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating us to pay any fees or making us subject to any usage limitations imposed by such third party service providers.

By creating a User Account, you are agreeing to receive communications from us via email, text message, calls, and push notifications to the mobile telephone number you provide. You agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages, communications regarding your orders, and promotional message from us, sellers that you purchase from, or third parties.  If you do not wish to receive promotional emails, text messages, or other communications, you may opt out of such communications at any time in your User Account settings. You may also opt-out of receiving text messages from us by replying "STOP” from the mobile device receiving the messages.

  1. Service Process; Fees

In consideration of the Services, we will assess you a fee on each purchase  (the “Service Fee”).  The Service Fee for any purchase will be shown to you during the check-out process.  Service Fees are non-refundable. We may also, in the future, charge you a monthly fee to access the Service (the “Subscription Fee”).  The Service Fee and any future Subscription Fee are collectively the ”Fees”.

When you use the Service to purchase a product or service, we will share information with the product or service provider as necessary or requested.  At all times we are acting as your agent and not the seller of any product or service; the product or service provider remains the sole merchant of record, and title to any product or service passes from them to you at the time of your purchase.

We will also process information, including payments, through third party service providers.  In order to use the Services, you must provide account information for at least one valid credit or debit card.  You hereby authorize FetchyFox or its service provider to run card authorizations requests on all cards provided by you, to store card or other financial details as your method of payment for Services, and to charge your  card for your purchases and the Service Fee. For any recurring charges, such as a Subscription Fee if or when implemented, you authorize us or our third-party payment processor to bill your payment card in advance on a periodic basis.

You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. We do not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

  1. Purchases Involving Alcohol

You may have the option to order delivery of alcohol products in some locations and from certain retailers. You agree that you will comply with all applicable laws and not cause us or any retailer to contravene any applicable laws.  You agree that you are 21 year of age or older if you order alcohol products. You agree that we do not accept orders for alcohol products, but that the order will only be delivered if the retailer accepts your order. You will be required to provide valid government-issued identification proving your age to the person making your delivery, and you agree that you will not be intoxicated when receiving delivery of alcohol products.  We reserve the right to cancel the alcohol-related portion of any purchase in our sole discretion if we determine that any requirement of this section of these Terms is not met.

  1. Your Content

Registered Users may be allowed to upload Content to the Site. “Content” means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.  You acknowledge and agree that you alone are responsible for any and all Content you post on the Service. When you post Content on the Services, you represent and warrant that you have the right, power, and authority to post that Content and grant the licenses specified below.  

  1. User Affirmations, Conduct and Use

By using the Service, you represent, warrant and agree to the following:

  • You are at least 18 years of age.

  • You are solely responsible for compliance with any and all laws, rules, regulations, or obligations that may apply to your use of the Service.  

  • Nothing that you upload, publish, represent, warrant or transmit using the Site or Service, will infringe, misappropriate or violate a third party’s rights, or result in the violation of any applicable law or regulation.

  • You will not use manual or automated software, devices, scripts, redirects, robots, other means or processes to access, “frame,” “mirror,” “scrape,” “crawl” or “spider” any web pages or other services contained in the Services.

  • You will not use the Service for any commercial or other purposes that are not expressly permitted by these Terms.

  • You will not copy, store or otherwise access any information contained on the Service for purposes not expressly permitted by these Terms.

  • Your will not interfere with or damage the Service, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;

  • You will not impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity.

  • You will not systematically retrieve data from the Service to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise.

  • You will not access, tamper with, or use non-public areas of the Site or Service, FetchyFox’s computer systems, or any third-party provider system.

  • You will not attempt to probe, scan, or test the vulnerability of any FetchyFox system or network or breach any security or authentication measures.

  • You will not avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by FetchyFox or any of FetchyFox’s providers to protect the Site or Service.

  • You will not advocate, encourage, or assist any third party in doing any of the foregoing.

FetchyFox will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. FetchyFox may involve and cooperate with law enforcement authorities in prosecuting Users who violate these Terms.

You acknowledge that FetchyFox has no obligation to monitor your access to or use of the Service, but has the right to do so for the purpose of operating the Service, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.

  1. Ownership; Licenses

The Service is protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Service, including the Site and all associated intellectual property rights, is the exclusive property of FetchyFox and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site.

Subject to your compliance with these Terms, we grant you a limited, non-exclusive, revocable, non-transferable license, to access and use the Services made available to you. You have no right to sublicense the license rights granted in this section.  You represent, warrant and agree that you will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Services or any Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by FetchyFox or its licensors, except for the licenses and rights expressly granted in these Terms.

We may, in our sole discretion, permit Users to display, post, upload, publish, submit or transmit User Content. By making available any of your User Content on or through the Services, you hereby grant to FetchyFox a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to create derivative works, sublicense, use, edit, view, copy, adapt, modify, distribute, license, sell, host, market, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, and otherwise fully exploit such User Content on, through, or by means of the Services as currently exist or may be developed in the future. FetchyFox does not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content.

  1. Digital Millennium Copyright Act

If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single website location are covered by a single notification, a representative list of such works at that website;

• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;

• Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;

• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

• A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

FetchyFox’s designated Copyright Agent to receive notifications of claimed infringement is FetchyFox, Inc., email: contact@fetchyfox.com, address: 100 S Murphy Ave, Suite 200, Sunnyvale, CA 94086.  You acknowledge that if you fail to comply with all of these requirements, your DMCA notice may not be valid.

 

Counter-Notice. If you believe that your User 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 the material in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent:

• Your physical or electronic signature;

• Identification of the User Submission that has been removed or to which access has been disabled and the location at which the User Submission appeared before it was removed or disabled;

• A statement that you have a good faith belief that the User Submission was removed or disabled as a result of mistake or a misidentification of the User Submission; and

• Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

 

If a counter-notice is received by the Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

  1. Links

The Site may contain links to third-party websites or resources. You acknowledge and agree that FetchyFox is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by FetchyFox. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.

  1. Advertisements

FetchyFox may include advertisements on its own behalf or paid advertisements on behalf of interested companies and/or individuals on the Site. By clicking on the advertisements, you may be shifted to a website of the advertiser or receive other messages, information, or offers from the advertiser. You acknowledge and agree that FetchyFox is not liable for the privacy practices of advertisers or the content of their websites, information, messages or offers. Users are wholly liable for all communications with advertisers and for all transactions subsequently executed.

  1. Proprietary Rights Notices

All trademarks, service marks, logos, trade names and any other proprietary designations of FetchyFox used herein are trademarks or registered trademarks of FetchyFox. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

  1. Termination

We may, in our discretion and without liability to you, with or without cause, with or without prior notice, and at any time terminate these Terms or your access to the Service. Upon termination we will promptly remit to you any funds in our control that we reasonably determine are owed to you.  In the event we terminate these Terms, or your access to our Services or deactivate or cancel your User Account, you will remain liable for all funds due hereunder. You may cancel your User Account at any time by contacting us or following the prompts on the Site. Please note that if your User Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Services, including, but not limited to, any reviews or feedback.

  1. Disclaimers

IF YOU CHOOSE TO USE THE SERVICES, YOU DO SO AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, FETCHYFOX EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FETCHYFOX MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. FETCHYFOX MAKES NO WARRANTY REGARDING THE QUALITY OF THE SITE.  FURTHER, WE DISCLAIM ALL WARRANTIES REGARDING THE QUALITY, SUITABILITY, SAFETY OF ANY PRODUCT OR SERVICE PROVIDED TO YOU BY ANY SELLER.

YOU ACKNOWLEDGE AND AGREE TO INDEMNIFY AND HOLD FETCHYFOX HARMLESS IN CONNECTION WITH ANY CLAIM AND ANY DAMAGES OR EXPENSES ARISING FROM OR RELATED TO YOUR USE OF THE SERVICES.

  1. Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE OR SERVICE REMAINS WITH YOU. NEITHER FETCHYFOX NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FETCHYFOX HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  WE WILL NOT BE LIABLE FOR AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES OR ANY PRODUCTS YOU FOR MORE THAN THE GREATER OF $100 OR THE SERVICE FEES PAID BY YOU TO INSTACART FOR THE PAST 12 MONTHS OF THE SERVICES.

  1. Indemnification

You agree to release, defend, indemnify, and hold FetchyFox and its respective affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal fees, arising out of or in any way connected with (a) your access to or use of the Site, or your violation of these Terms; (b) your use of the Services;  (c) your violation of any third party right, including without limitation any copyright, property, or privacy right; (d) any claim that your use of the Services caused damage to a third party; or (e) an product you purchase or receive through the Services. FetchyFox shall have the right to control all defense and settlement activities.

  1. Assignment

You may not assign or transfer these Terms, by operation of law or otherwise, without FetchyFox’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. FetchyFox may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

  1. Notices

Unless otherwise specified herein, any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by FetchyFox by posting to the Site. For notices or communications by FetchyFox made by e-mail, if any, the date of receipt will be deemed the date on which such notice is transmitted.

  1. Controlling Law and Jurisdiction

You agree that (i) the Site and Services shall be deemed solely based in California, and (ii) the Site shall be deemed a passive website that does not give rise to personal jurisdiction over FetchyFox, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. You and we agree to submit to the personal jurisdiction of a state court located in Santa Clara County, California for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution Provision below.

YOU AND FETCHYFOX AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED AND WAIVED.

 

  1. Severability

 

These Terms are intended to govern the agreement between FetchyFox and you to the extent permitted by all applicable laws, ordinances, rules, and regulations. If any provision of these Terms or the application thereof to any person or circumstances shall, for any reason or to any extent, be invalid or unenforceable, the remainder of these Terms and the application of such provision to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.

  1. Dispute Resolution Provision

You and FetchyFox agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, the Services or the Site (collectively, “Disputes”) will be settled by binding arbitration; except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.

You acknowledge and agree that you and FetchyFox are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and FetchyFox otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.

Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/ or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.

Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/ and a separate form for California residents at www.adr.org/. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location and Procedure. Unless you and FetchyFox otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and FetchyFox submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.

Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $20,000, FetchyFox will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

No Class Action. YOU AND FETCHYFOX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.  

PAGA Waiver. TO THE EXTENT PERMISSIBLE BY LAW, THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT, HEARD, OR ARBITRATED ON A GROUP BASIS OR IN ANY ACTION IN WHICH A PARTY SEEKS TO REPRESENT OTHER INDIVIDUAL(S) IN A PRIVATE ATTORNEY GENERAL ACTION ("PAGA WAIVER"). PAGA CLAIMS MAY ONLY BE ARBITRATED ON AN INDIVIDUAL BASIS.

Changes. Notwithstanding the provisions of the “Modification” section above, if FetchyFox amends this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms) you will be notified in accordance with these Terms. You may reject any such change by sending us written notice (including by email to support@FetchyFox.com) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of FetchyFox’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and FetchyFox in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

Enforceability. If the “No Class Action” section of this Dispute Resolution Provision is found to be unenforceable, or if the entire Dispute Resolution Provision is found to be unenforceable, then the entirety of the entirety of the Dispute Resolution Provision will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described above will govern any action arising out of or related to these Terms.

Right to Opt Out of Arbitration and Class Action/Jury Trial Waiver: You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying us in writing within 30 days of the date you first registered for the Services.  To opt out, you must send a written notification to FetchyFox, Inc., Attn: Legal, 100 S Murphy Ave, Sunnyvale, CA 94086 that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions. Alternatively or in addition, you may send this written notification to support@FetchyFox.com.  

  1. International Users

FetchyFox makes no claim that the Site is appropriate or may be downloaded outside the United States. If you access the Site from a location outside the United States, you do so at your own risk and are responsible for compliance with all applicable laws, rules, regulations or decrees of your jurisdiction.

  1. Feedback and Reporting Misconduct

We welcome and encourage you to provide feedback, comments and suggestions (collectively “Feedback”) for improvements to the Site. You may submit feedback by emailing us at support@fetchyfox.com. You acknowledge and agree that all Feedback will be the sole and exclusive property of FetchyFox and you hereby irrevocably assign to FetchyFox and agree to irrevocably assign to FetchyFox all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At FetchyFox’s request and expense, you will execute documents and take such further acts as FetchyFox may reasonably request to assist FetchyFox to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.

  1. General

The failure of FetchyFox to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of FetchyFox. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

Certain Services features, or website and/or application areas (and your access to or use of certain aspects of the Services or content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Services, or Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the website, application, Services, or content.

  1. Notice to California Residents.

If you are a California resident, under California Civil Code § 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.

  1. Entire Agreement

 

These Terms constitute the entire and exclusive understanding and agreement between FetchyFox and you regarding the Service, and supersede and replace any and all prior oral or written understandings or agreements between FetchyFox and you regarding the same.

 

Disclaimer: The original, legally binding version of this document is written in English.  If it is translated into other languages by non-native English-speakers or by software, there may be discrepancies between the English version and the translated version.  If so, the English version supersedes the translated version.

 

© 2018 FetchyFox, Inc. All rights reserved.

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Sunnyvale, CA

© 2019 FetchyFox, Inc.