These Terms of Service (“Terms”) govern your use of the Fizgig® mobile application, application programming interfaces, content, products, and other services offered by Fizgig®, as well as Fizgig® services provided through third parties integrating Fizgig® functionality (collectively, the “Services”). Fizgig® (“Fizgig®, “Company”, “we” or “us”) provides the Services. “You” refers to you as a user of any 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 FIZGIG® 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 AGREEING TO 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 include a marketplace technology platform that enables third-party pet owners (“Pet Owners”) and third-party pet care Pet sitters (“Pet Care Providers”) to connect with each other. Fizgig® has no control over the conduct of Pet Care Providers or any other users of the Services. YOU ACKNOWLEDGE AND AGREE THAT FIZGIG® IS A TECHNOLOGY SERVICES PROVIDER THAT DOES NOT PROVIDE PET CARE SERVICES.
By agreeing to these Terms and/or by using or accessing the Services (including without an account), you expressly acknowledge that you understand and accept all of the terms (including the dispute resolution and arbitration provisions below). BY USING THE SERVICES, YOU AGREE 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.
Fizgig® 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 notify you 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.
You expressly consent to receive and accept communications from Fizgig®, our Affiliates (as defined below), and their respective representatives, including via e-mail, telephone calls, 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 Fizgig®. 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 (855) 732-9513 OR CUSTOMERSERVICE@FIZGIGAPP.COM. If you receive a marketing call from Fizgig®, 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 Fizgig® 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 Fizgig® without agreeing to receive autodialed or prerecorded marketing calls or text messages from Fizgig® and our Affiliates, contact a Customer Success representative for assistance at (754)-423-0349 or email@example.com. 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, FIZGIG® MAY STILL SEND YOU COMMUNICATIONS ABOUT YOUR ACCOUNT OR ANY TRANSACTIONS BETWEEN YOU, FIZGIG®, AND/OR OTHER USERS OF THE PLATFORM, INCLUDING THE SERVICES YOU PROVIDE TO 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.
The Services include 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 pet walking, boarding, sitting, transportation, or other services offered by Pet Care Providers or about your interactions and dealings with Pet Care Providers or other users. Fizgig® 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. Fizgig® does not procure insurance for Pet Owners (or their pets) or Pet Care Providers, nor is Fizgig® responsible for the property of Pet Owners or Pet Care Providers.
Fizgig® provides Pet Care Providers with access to third-party vendors that perform background checks and verifications. Fizgig® itself does not conduct background checks or independently verify information in the background checks. Fizgig® is not responsible or liable in any manner for the background checks.
7.1 Currency: All fees, deductible amounts and other payments referenced on, or charged through, the Fizgig® Service are listed and payable in local currency.
7.2 Fees for Pet Owners: If you are a Pet Owner, you enter a transaction with the Pet sitters when you accept a booking, and you agree to pay the total fees indicated in the booking. The total amount Pet Owners are charged for a booking may include a service fee payable to Fizgig®. Where required by law, the amount charged will also include applicable taxes. The Pet sitter, not Fizgig®, is responsible for performing the Pet Care Services.
7.3 Fees for Pet sitters: Pet sitters may agree to provide Pet Care Services to a Pet Owner by agreeing to a booking agreed upon by both parties. If you are a Pet sitter, you must confirm the booking before it expires, or the Pet Owner will have no obligation to complete the transaction. Once both parties complete the booking, you agree to honor the price set forth in your booking. The purchase of Pet Care Services is a transaction between the Pet Owner and the Pet sitter. Fizgig®’s role is to facilitate the transaction. We will (either directly or indirectly through an authorized third party) collect payment from the Pet Owner at the time of booking and (except to the extent of any payment held pursuant to changes in the agreement set forth by both parties) initiate payment to the Pet sitter’s account 48 hours after completion of the service period indicated in the booking. Pet sitters are charged a percentage service fee on each transaction. Where required by law, the amount charged will also include applicable taxes.
7.4 Service Fees: We charge service fees for some aspects of the Fizgig® Service. If you are a Pet sitter, except where otherwise specified via the Fizgig® Service, our service fee is calculated as a percentage of the fees a Pet Owner agrees to pay you in a booking and is collected from each booking. Our service fees are described here.
7.5 Late Fees and Additional Charges: If you are a Pet Owner, you acknowledge and agree that if you fail to retrieve your pet at the end of the service period agreed in a booking, you will be charged for additional service time (pro-rated for each partial late day) at the daily rate established in the booking. In addition, you agree to indemnify Fizgig® from and agree that we may charge your credit card or other payment method for any additional costs and expenses we or the Pet sitter incur as a result of your failure to retrieve your pet at the end of the service period agreed in a booking.
Reservation Protection: As more fully described on Fizgig®’s Reservation Protection page, Fizgig® can help you find replacement Pet sitters when Pet sitters cancel Bookings near the start date of the service period identified in the Booking. The availability of the Reservation Protection depends on the timing of the cancellation and the type of Pet Care Services provided; consult the Reservation Protection page for details.
Cancellations by Pet sitters: If a Pet sitter cancels a Booking prior to or during the service period identified in the Booking, we will refund the fees paid by the Pet Owner for Pet Care Services not provided, as well as any service charge paid to Fizgig®. If you are a Pet sitter, you can appoint a substitute Pet sitter (as agreed by the Pet Owner and so long as the substitute has an active account on the Fizgig® Service and has agreed in writing to accept a Booking) by contacting Fizgig® to modify the Booking. If you do not find a substitute and repeatedly cancel accepted Bookings without justification, Fizgig® may terminate your account.
Cancellations by Pet Owner: If a Pet Owner cancels a Booking prior to or during the service period specified in a Booking, we will refund fees in accordance with the cancellation policy selected by the Pet sitters on the Fizgig® Service. All Pet sitters are required to select a cancellation policy prior to completing a Booking so that Pet Owners are aware of the cancellation policy prior to Booking. For more information about cancellation policies, please visit the Help Center.
Force Majeure: The cancellation policies described herein may not apply in the event of certain emergency situations beyond the control of Pet sitters and/or Pet Owners that make it impossible or impractical to perform agreed Bookings, such as evacuations resulting from earthquake, hurricane, wildfire, flood, war, riots or other similar disaster. In such cases, Fizgig® may, in its reasonable discretion, issue refunds under terms that vary from a Pet sitter’s selected cancellation policy.
Refunds for Failure to Perform: If we determine in our reasonable discretion that a Pet sitter has failed to provide Pet Care Services as agreed with the Pet Owner or is otherwise in breach of these Terms, then we may, in our reasonable discretion, cancel a Booking and/or issue a full or partial refund to a Pet Owner.
General Terms for Cancellations: If you wish to cancel a Booking, you should use the mechanisms available through the Fizgig® Service to do so. For purposes of the policies and terms in this Section 9.6, the date of cancellation is the date that a user cancels through the Fizgig® Service, regardless of any separate communications between users outside of the Fizgig® Service.
Payment Disputes and Payment Outside of the Fizgig® Service: Fizgig® initiates payments to Pet sitters 48 hours after completion of a Booking. Once these amounts have been disbursed, any further payment disputes are between the Pet Owner and Pet sitters, and Fizgig® has no obligation to mediate or facilitate any resolution. Further, Fizgig® has no responsibility or liability with respect to any tips, bonuses, or other payments made outside of the Fizgig® Service.
7.7 Payment Holds: If you are a Pet sitter, Fizgig® reserves the right to issue a hold on amounts otherwise payable to you pursuant to Section 9.3 if there is a reasonable suspicion of fraudulent activity involving your account(s) or for other similarly compelling reason involving the protection of Fizgig®, the Fizgig® community or third party rights, we may also recommend that third party payment restrict your access to funds in your account under the same circumstances.
7.8 Authorization to Charge: When you pay for Pet Care Services or other services on the Fizgig® Service, you will be required to provide us with valid, up-to-date credit card or other payment information and to maintain that payment information (or an acceptable alternative payment method) on file with your account so long as you have any outstanding, confirmed Bookings. Fizgig®’s role is to facilitate payments from Pet Owners to Pet sitters as a limited payment agent for the Pet sitters. You authorize us to charge your credit card or other payment method for fees you incur on the Fizgig® Service as they become due and payable and to charge any alternative payment method Fizgig® has on record for you in the event your primary payment method is expired, invalid, or otherwise not able to be charged. You are responsible for maintaining up-to-date payment information. If we cannot charge you for fees when due because your payment information is no longer valid, or if we do not receive your payment when due, then you understand that neither Fizgig® nor the Pet sitters will be responsible for any failure to provide services associated with those fees. Except as expressly provided in these Terms, all fees paid via the Fizgig® Service are non-refundable once paid.
7.9 Taxes: Except for taxes on Fizgig® income and gross receipts or where Fizgig® is otherwise required to collect taxes, you acknowledge that you are solely responsible for paying any applicable taxes that arise as a result of your purchase, provision, or use of Pet Care Services via the Fizgig® Service. This includes, without limitation, any form of sales tax, VAT, or income tax on fees paid or received by you through the Fizgig® Service.
8. Acceptable Use of the Services
The Services allow you to upload, submit, store, send, or receive data, information, and content (“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:
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 includes obscenities or other objectionable content, includes an individual’s name or other personal information, or violates 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 our 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).
Fizgig® offers an in-app chat feature to connect Pet Owners with Pet Care Providers better. Data, information, and content sent through the chat feature are User Content that is subject to these Terms. We can 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, 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 or videos or otherwise create recorded media of you or your pet while providing services to you. You also understand and agree that during the course of service, you or your pet may participate in recorded media. 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 Fizgig® 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 Fizgig® 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 Fizgig®’s and Pet Care Providers’ sole discretion. Fizgig® 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 Fizgig® through the Fizgig® Services, solely for non-commercial purposes (e.g., posting a photo on your social media accounts).
As a Pet Owner, you hereby represent, covenant, and warrant to Fizgig® 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; (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; and (6) the pet(s) for which you are seeking services are not dangerous or otherwise likely to injure others. 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 Fizgig®, you shall be liable for any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorneys’ 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, injuries, damage, or loss caused by your pet may be governed by applicable state liability laws. Fizgig® will cooperate with appropriate law enforcement authorities to provide the 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 purchase or 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.
You understand and agree that any Pet Care Provider from whom you may seek or obtain pet care services via the Services is an independent contractor and not a partner, joint venture, agent, legal representative, employer, worker, or employee of Fizgig®. Pet Care Providers have no ability or authority to represent Fizgig® or otherwise make statements or commitments on Fizgig®’s behalf.
Pet Care Providers have the sole and absolute discretion to reject or refuse any pet care services that you may request, including if they violate any law or regulation, are dangerous or unsafe, or otherwise violate these Terms or the Additional Terms. If you, in your sole discretion, 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 pets 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, we encourage Pet Owners to request only on-leash services. Please note that for safety reasons, puppies, kittens, or other pets that are six (6) months or younger may be restricted from certain types of services offered via the Fizgig® platform or be subject to limited service offerings tailored specifically to young pets.
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 Fizgig® (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 Fizgig® and/or the Pet Care Provider for all costs and expenses associated with such actions. Furthermore, Fizgig® expressly reserves the right, in its sole discretion, to remove a Pet Owner’s pet from a Pet Care Provider’s care should Fizgig® deem it necessary for the safety of a pet, the Pet Care Provider or any third parties. Prior to removing a pet from the care of a Pet Care Provider, Fizgig® will use reasonable efforts during its normal business hours to contact the Pet Owner and/or the Pet Owner’s emergency or trusted contact (if provided) to arrange alternative care. Should Fizgig® not be able to contact the Pet Owner or the emergency contact, Fizgig® will use its best judgment to find alternative care for the pet until the Pet Owner is able to retrieve his/her pet. If you are a Pet Owner, you authorize your pet’s veterinarian(s) to release your pet’s veterinary records to Fizgig® in connection with any such relocation or re-homing of your pet. In addition, you are responsible for and agree to pay all costs and expenses incurred by Fizgig® in connection with such transfer.
If your Pet Care Provider or Fizgig® 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 known at the time of such refusal, against Fizgig® or its predecessors, successors, 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 Fizgig® 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 Fizgig® to charge any of your payment methods for such costs.
As a Pet Owner, you acknowledge that Fizgig® is in the business of connecting Pet Owners and Pet Care Providers and that said business is how Fizgig® 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 Fizgig® platform, Fizgig® 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 the process provided for within the Fizgig® platform.
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:
For clarity, only copyright infringement notices should be sent to our Copyright Agent at firstname.lastname@example.org. 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 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 Copyright Agent address listed above containing the following information:
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 have your information revealed 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 a notification, we will be unable to restore the material. If we do not receive such a notification, we may reinstate the material.
You agree that all telephone conversations between you and Fizgig® (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.
Reviews, profiles, advice, opinions, statements, offers, postings, or other information or content made available through the Services but not directly by Fizgig® are those of their respective authors, who are solely responsible for such content.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FIZGIG® DOES NOT: (A) WARRANT THE ACCURACY, ADEQUACY, OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SERVICES; OR (B) ADOPT, ENDORSE, OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN FIZGIG®.
These Terms apply to your use of the Services, including the Fizgig® 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:
Pet Care Providers (when the Terms are agreed to between Fizgig® and a Pet Owner) and Pet Owners (when the Terms are agreed to between Fizgig® 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.
We reserve the right not to 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.
YOU USE THE SERVICES AND ANY CONTENT AND PRODUCTS AVAILABLE ON OR THROUGH THE SERVICES AT YOUR OWN RISK. THE SERVICES AND ANY CONTENT AND PRODUCTS AVAILABLE ON OR THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, FIZGIG® 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, FIZGIG® AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SERVICES, PRODUCTS OFFERED FOR SALE THROUGH THE SERVICES, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SERVICES. FIZGIG® 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 OR ANY PRODUCT OFFERED FOR SALE 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. FURTHERMORE, 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.
We do not warrant that the quality of any products, Services, information, or other material purchased or obtained by you will meet your expectations. While we aim to display product colors and images as accurately as possible, we cannot guarantee that your computer monitor’s display of any color will be accurate. We reserve the right to correct or update any information and to change or update information or cancel orders if any information is inaccurate at any time without prior notice (including after you have submitted your order), but disclaim any obligation to do so except as required by law.
You are solely responsible for determining whether products are suitable for use or consumption by your pet. Any nutrition, ingredient, allergen, or other product information is provided by the product manufacturers or suppliers and may be modified by the manufacturers from time to time. Fizgig® does not represent or warrant that such information is accurate or complete, and we recommend that you do not rely solely on the information presented. Please consult the product label or contact the manufacturer directly if you have a specific dietary or allergic concern or any other question about a product.
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.
The Services relating to pet health (the “Health Related Services”) are provided for informational purposes only. The Health-Related Services do not provide medical or veterinary advice or any medical, veterinary, healthcare, or wellness service. The Health-Related Services are not a substitute for the professional judgment of a veterinary or other medical professional and are not in any way intended to substitute for or override professional veterinary advice, diagnosis, or treatment. Always seek the advice of your veterinarian or other qualified health provider with any question you may have regarding a pet’s medical condition. If you think your pet may have a medical emergency, call your veterinarian, animal control, PETA, or 911 for help immediately.
You also acknowledge and agree that communications on or through the Health Related Services, including, without limitation, User Content, whether with content providers or other users, are at your own risk and are not covered by any privilege or confidentiality obligation that might apply if you were to obtain your own professional advice (e.g., veterinarian-pet).
No matter the qualifications of the person answering your question, by using the Health Related Services, including but not limited to “Ask a vet” and live digital consultations, you expressly acknowledge that the Health Related Service is NOT a substitute for veterinary care (whether emergency or otherwise), and you further acknowledge that we, the veterinarians, and the Pet Care Providers cannot provide advice or consultation over the internet regarding any specific medical condition (whether of an emergency nature or otherwise) without a thorough and proper physical evaluation of the pet. In addition, the quality of the responses provided by the veterinarians and Pet Care Providers will be influenced directly by the quality of the question asked (and the completeness and accuracy of the information conveyed by the person asking the question), of which we, the veterinarians, and the Pet Care Providers have no control. If your pet is sick, injured, or otherwise in need of medical attention, you agree to contact your regular veterinarian or local emergency provider of veterinary services immediately, as neither Fizgig® nor the Health Related Services is the appropriate venue to deal with such situations.
You also expressly acknowledge and agree that in the case where one of the Pet Care Providers who is a licensed veterinarian answers your question(s), a veterinarian-client-patient relationship is NOT and will NOT be established and that the Health Related Services will NOT be able to diagnose, treat, or prescribe any medication for your pet. You further acknowledge that the laws, regulations, other governing authorities, standards, practices, and procedures that apply to your particular question may differ depending upon your location or upon the information that typically would be discovered through in-person (or in-pet) evaluations or visits. By using the Health Related Services, you understand that any licensed veterinarian that answers your question(s) is NOT your pet’s veterinarian and that the information they provide to you is NOT a substitute for in-person veterinary diagnosis and/or treatment. Please be advised that nothing transmitted to or via the Health-Related Services constitutes the establishment of a veterinarian-client-patient relationship between you (or your pet) and any professional.
We highly recommend that you always seek the advice of your veterinarian or other qualified provider with any questions that you may have regarding your pet’s medical condition and that you do not disregard their advice (or delay seeking their advice) because of something that you have read or otherwise been provided through the Health Related Services.
You agree to indemnify and hold harmless Fizgig® and its Affiliates from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorneys’ 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; (iv) any of Your Content; (v) any text messages or other communications that you initiate to other Users or to third parties through our Services; and (vi) 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 AND INVESTIGATION 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 PRIOR WRITTEN CONSENT.
For purposes of this Section 22 (“Arbitration Agreement”), references to “Fizgig®” include our Affiliates.
a. Applicability. You and Fizgig® 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, your relationship with Fizgig®, or your receipt of any communications from Fizgig® will be resolved by binding arbitration on an individual basis, rather than in court, except that you may assert claims in small claims court to the extent 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 Fizgig®, 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, services, or content made available through the Services, your relationship with Fizgig®, the threatened or actual suspension, deactivation, or termination of your account with Fizgig®, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Fizgig®, any communications you receive from Fizgig®, 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 Fizgig®, this Arbitration Agreement will not apply to any claims or disputes arising out of your employment relationship with Fizgig®, 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, Fizgig® 1174 SW 121st Ave, FL 33025, and email@example.com. 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 http://www.adr.org/sites/default/files/CommercialRules_Web.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 a reasonably equivalent alternative arbitral forum. If the arbitrator finds that you cannot afford to pay filing, administrative, hearing, and/or other fees necessary for the arbitration and you cannot obtain a waiver for such fees, Fizgig® will pay them for you. In addition, Fizgig® will reimburse all such filing, administrative, hearing and/or other fees for proceedings involving claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Fizgig® will not seek attorney’s 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, 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 regarding or arising out of the applicability of these Terms, the Additional 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 (or similar rule if not arbitrated by the AAA). The arbitration will decide the rights and liabilities, if any, of you and Fizgig®. 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 Fizgig®.
d. Waiver of Jury Trial. YOU AND FIZGIG® 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 these 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 Santa Clara 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 emailing a written notice of your decision to opt out to firstname.lastname@example.org 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 Fizgig® username (if any), the email address you used to set up your Fizgig® 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 Fizgig®. 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 Fizgig®.
h. Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Fizgig® 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 Fizgig® a notice of your rejection to email@example.com. Your rejection of any such changes shall not affect the enforceability of any prior version of this Arbitration Agreement or of any other agreement to arbitrate that you previously entered into with Fizgig®.
Under no circumstances will Fizgig® 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 Santa Clara County, California. You and Fizgig® consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
YOU AND FIZGIG® HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDINGS ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES, THESE TERMS, THE ADDITIONAL TERMS, YOUR RELATIONSHIP WITH FIZGIG®, OR YOUR RECEIPT OF ANY COMMUNICATIONS WITH FIZGIG®.
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. Our failure to enforce any right or provision of these Terms will not be deemed a waiver and 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 Fizgig®, and any purported assignment in violation of this provision shall be null and void.