These Terms of Service (this “Terms”), are by and between Prancing Penguin Marketplace, LLC (“Company” or “us” or “we” or “our”) and the individual (“you” or “your”) accessing or using the Company website or mobile application (collectively referred to as the “Site”). By visiting our Site and/or purchasing something from us, you engage in our “Service” and agree to be bound by these Terms, including those additional terms and policies incorporated herein.
WE PROVIDE ACCESS TO THE SITE AND THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH HEREIN AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY USING THE SITE, YOU (A) ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM; AND (B) REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS THE SITE OR USE ANY SERVICES. YOUR USE OF THE SERVICES AND ACCESS TO THE SITE IS SUBJECT TO OUR PRIVACY POLICY, WHICH IS AVAILABLE HERE: https://petcameo.prancingpenguin.com/pages/privacy (“PRIVACY POLICY”). BY ACCESSING OR USING THE SITE OR OUR SERVICES, YOU AGREE THAT WE CAN COLLECT AND USE YOUR INFORMATION IN ACCORDANCE WITH OUR PRIVACY POLICY.
1. Use of the Site; Changes in Terms
Any new features or tools which are added to the Site shall also be subject to the Terms. You can review the most current version of the Terms at any time on this page. We reserve the right to update, change or replace any part of these Terms by posting updates and/or changes to our Site. It is your responsibility to check this page periodically for changes. Your continued use of or access to the Site following the posting of any changes constitutes acceptance of those changes. Full use of the Site is dependent upon your use of adequate and compatible internet access, software and hardware. You are responsible for securing such access, software and equipment, and your failure to do so could affect your access to, and the functioning of, the Site. We reserve the right to terminate your access to the Site or any of its Services if we determine that you (1) do not comply with these Terms; (2) provide false, inaccurate, or incomplete information through the Site; (3) engage in any conduct that would otherwise harm any of our rights or interests in its Site, Services, or other property; or (4) for any or no reason whatsoever without prior notice to you. We may take any other actions necessary in this regard or seek any remedies permitted by law.
2. Mobile Application
(a)License Grant. If you are accessing the Site via our mobile application (“Application”), subject to and conditioned upon your strict compliance with all the Terms, we hereby grant you a non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Application on compatible devices and in accordance with the Terms and solely for the purposes described herein. We may discontinue access to the Application at any time, without notice to you. It is your responsibility, and not our responsibility, to determine whether the mobile device you will use with the Application is compatible.
(b)Use Restrictions. You shall not, and shall not allow, encourage, enable or solicit any individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity other than you or us (each, a “Third Party”) to, directly or indirectly: (i) use (including make any copies of) the Application beyond the scope of the license granted under Section 2; (ii) provide any Third Party with access to or use of the Application or your information; (iii) copy, modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application or any part thereof; (iv) combine the Application or any part thereof with, or incorporate the Application or any part thereof in, any other programs or services; (v) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof; (vi) remove, delete, alter or obscure any trademark, copyright, patent or other intellectual property or proprietary rights notices provided on or with the Application, including any copy thereof; (vii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Application, or any features or functionality of the Application, to any Third Party for any reason; (viii) use the Application in violation of any law, regulation or rule; (ix) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection or security features in the Application; (x) use the Application for purposes of competitive analysis or creation of a competing product or service or any other purpose that is to our commercial disadvantage; (xi) use the Application outside of the United States; or (xii) use the Application on devices that are not owned or otherwise controlled by you.
3. Your Responsibility for Use of the Site; Content License; and Order Acceptance
(a)Your electronic order confirmation, or any form of confirmation, does not signify our acceptance of your order for purchase of any product made available through the Site (“Product”). We reserve the right to accept or deny shipment to anyone for any reason. You represent and warrant that any and all orders you submit to this Site are not unlawful or discriminatory in any way, are not offensive, threatening, abusive, harassing, tortious, defamatory, obscene, harmful, indecent, libelous, invasive, slanderous, hateful, inciting or promoting the hate, harassment or discrimination against others based solely on race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, disease or immigration status, or is otherwise objectionable or violates any third party’s Intellectual Property Rights (as defined in Section 7), or these Terms. You represent and warrant that you will not use this Site to create, order, publish and/or distribute any product that we determine, in our sole discretion, to contain any such content enumerated above, or that places any person in a bad light or in any way they may find offensive, or that in any way, intentionally or unintentionally, violates any applicable law. Your right to use and/or access the Site and Services is conditioned upon your compliance with these standards and conduct guidelines, and applicable law. If you fail to adhere to these standards and guidelines, or any part of these Terms, we may terminate, in our sole discretion and without notice to you, your use of, or access to, the Site and any of the Services and we reserve the right to cancel orders that we determine in our sole discretion to be in violation of the above requirements.
(b)By uploading any image, material or other content (“Content”) to the Site, you represent and warrant that you either own all Intellectual Property Rights to the Content or possess a valid license that grants you the right to use such Content for the purposes intended through the Site and in accordance with these Terms (including the right to sublicense in accordance with the terms set forth herein). You hereby grant us a non-exclusive, transferrable, sublicensable license to use the Content you submit through the Site to design, create, manufacture and provide the Products you order, including the right to copy, modify, distribute, use, and create derivative works from the Content you have uploaded for the purpose of fulfilling your order and/or marketing Products or Services.
(c)We provide no warranty of any kind that any Content you submit while using the Site possibly together with the Products or otherwise with our content, will not infringe, misappropriate or otherwise violate, or be subject to a claim of infringing, any Intellectual Property Rights of a Third Party. Notwithstanding your representations and warranties above, it is solely your responsibility to obtain the advice of an attorney regarding whether any aspect of your order submission is legally available for your particular use and does not infringe on the rights of another party. You are solely responsible for determining whether a license or other additional rights are required in connection with the intended use of your order and for obtaining such additional rights. In the event we deny your order, you will receive a refund to your original form of payment. You understand and agree that we will not be liable for any losses or damages that may result from our refusal to provide you any product or service. We reserve the right to require additional information before processing any order.
4. Products Sold for Personal Use Only
You represent and warrant that any Products or Services you purchase from our Site will be used for your own personal, non-commercial use. You represent and warrant that you will not resell, redistribute, modify, or export any Product that you order from the Site. We reserve the right to limit, cancel, or prohibit orders that, in our sole discretion, appear to have been placed by dealers, resellers, or distributors.
5. Monitoring, Audit and Expectations of Privacy
The Site is subject to monitoring by us at all times to ensure proper functioning, to prevent unauthorized use and violations of laws and regulations, to deter criminal activity, and for our other business purposes. As a user of the Application, you hereby acknowledge and agree that any information submitted through the Site is subject to monitoring and use by us in accordance with our Privacy Policy and is not subject to any expectation of privacy from us beyond the obligations of applicable law and our Privacy Policy. Further, you acknowledge that when you use the Site, we may use automatic means (including, for example, cookies and web beacons) to collect information about you and about your use of the Site, in accordance with our Privacy Policy. We have the right, but not the obligation, to disclose to law enforcement authorities information concerning your use of, and/or access to, the Site or that you otherwise make available to us.
6. Updates
We may from time to time in our sole discretion develop and provide updates to any part of the Site, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Site. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Site. If applicable, you may be required to download and install Updates as a condition to your continued use of and access to the Application. We are not responsible if information made available on the Site is not accurate, complete or current. The material on the Site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on the Site is at your own risk. The Site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of the Site at any time, but we have no obligation to update any information on our site.
7. Intellectual Property Rights in the Site and Services
As used herein, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. All aspects of the Site are protected by U.S. and international Intellectual Property Rights laws. You do not acquire any ownership interest in the Site or Services under these Terms, or any other rights thereto other than to use the Site in accordance with the terms herein, and subject to all terms, conditions and restrictions, under these Terms. As between you and us, and except as otherwise explicitly provided herein, we reserve and shall retain our entire right, title and interest in and to the Site and the Services and all Intellectual Property Rights arising out of or relating thereto.
8. Modifications to Prices and Services
Prices for our Products are subject to change without notice. We reserve the right at any time to modify or discontinue a Product or Service (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of a Product or Service.
9. Payment and Billing Information
You agree to provide current, complete and accurate purchase and account information for all purchases made through our Site. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
10. Testimonials, Reviews and other Submissions
Anything that you submit or post to the Site and/or provide us, including without limitation, testimonials, ideas, know-how, techniques, questions, reviews, comments, and suggestions (collectively, “Submissions”) is and will be treated as non-confidential and nonproprietary, and we shall have the right to use, copy, distribute, display, publish, perform, sell, lease, transmit, adapt, and create derivative works from such Submissions by any means and in any form, and to translate, modify, reverse-engineer, disassemble, or decompile such Submissions. You represent and warrant that you are the owner or have sufficient rights to share the Submissions with us in accordance with these Terms. Submissions represent the unique experience of the submitting customers, and do not necessarily reflect the experience that you may have using our Products.
11. Termination
These Terms are effective unless and until terminated. If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms, we may terminate this agreement with you at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof). We also may terminate these Terms immediately and without notice if we cease to support the Site (including the Application), which we may choose to do in our sole discretion. Termination will not limit any of our rights or remedies at law or in equity. Any terms of this Terms that by their nature are designed to survive termination shall so survive.
12. Third Party Information
The Site may display, include or make available third-party content (including content generated by other users, data, information, applications and other products, services and/or materials) (“Third Party Information”). You acknowledge and agree that we are not responsible for Third Party Information, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. We do not assume and will not have any liability or responsibility to you or any Third Party for any Third Party Information. Third Party Information and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to such Third Parties’ terms and conditions, if any.
13. Disclaimer of Application Warranties
EXCEPT WHERE PROHIBITED BY LAW, THIS SITE, SERVICES AND ALL PRODUCTS PROVIDED ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR LICENSORS, EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SITE, SERVICES AND ANY PRODUCTS PROVIDED TO YOU PURSUANT THERETO, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS, ACCURACY, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION OF THE FOREGOING, WE PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE SITE, SERVICES OR PRODUCTS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, ACHIEVE ANY INTENDED RESULTS, OR THAT THE SITE OR THE SERVER(S) THAT MAKE THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
14. Limitation of Liability
PLEASE CAREFULLY READ THIS SECTION, WHICH LIMITS THE REMEDIES YOU MAY SEEK FROM US.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a)EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT SHALL COMPANY OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, AND/OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER DAMAGES, FEES, COSTS OR CLAIMS ARISING FROM OR RELATED TO THESE TERMS, THE PRIVACY POLICY, THE PRODUCTS, OR YOUR OR A THIRD-PARTY’S USE OR ATTEMPTED USE OF THE SITE OR ANY PRODUCT, REGARDLESS OF WHETHER COMPANY HAS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, FEES, COSTS, OR CLAIMS. THIS INCLUDES, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES. THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE ALLEGEDLY CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, OR OTHERWISE. YOU AGREE THAT YOUR USE OF THE SITE AND SERVICES IS ENTIRELY AT YOUR OWN RISK.
(b)IF, NOTWITHSTANDING THE LIMITATIONS OF LIABILITY SET FORTH ABOVE, COMPANY IS FOUND LIABLE UNDER ANY THEORY, COMPANY’S LIABILITY AND YOUR EXCLUSIVE REMEDY WILL BE LIMITED TO THE GREATER OF (I) THE TOTAL AMOUNT YOU PAID FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM AND (II) USD $100.00. THIS LIMITATION OF LIABILITY SHALL APPLY FOR ALL CLAIMS, REGARDLESS OF WHETHER COMPANY WAS AWARE OF OR ADVISED IN ADVANCE OF THE POSSIBILITY OF DAMAGES OR SUCH CLAIMS. SOME STATES DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
(c)YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FORTH IN THIS SECTION 14 FORM A FUNDAMENTAL PART OF THIS AGREEMENT AND THESE LIMITATIONS SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
15. Indemnification
You agree to indemnify, defend and hold harmless us, our affiliates, and our and their officers, directors, employees, agents, affiliates, successors and assigns (collectively, “Our Indemnitees”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to (i) your breach of these Terms, including without limitation your breach of any representations or warranties herein; (ii) your violation of any law or the rights of a third-party, including any third-party intellectual property rights; (iii) our use of your Content, including claims that our use of your Content infringes, misappropriates or otherwise violates a third party’s Intellectual Property Rights. We reserve the right to assume control of the defense of any Third Party claim that is subject to your indemnification, in which case you will cooperate with us in asserting any available defenses.
16. Dispute Resolution
PLEASE CAREFULLY READ THE FOLLOWING SECTION, WHICH REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS YOU MAY HAVE WITH US, AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK REMEDIES FROM US. You agree that all disputes, claims, actions or causes of actions between you and us arising from or relating to these Terms, the Site or the Services (“Dispute”) shall be subject to the arbitration procedure described below.
(i)You and we agree all Disputes shall be resolved through final and binding arbitration, except as expressly set forth otherwise in these Terms. You can decline this agreement to arbitrate by contacting contact@prancingpenguin.com within 30 days of first accepting these Terms, stating your full name and that you decline to accept this arbitration agreement. The American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will take place in Los Angeles County, California or such other location to which We agree in writing. The AAA rules will govern payment of arbitration fees. There shall be one arbitrator, selected jointly by the parties.
(ii)You may only resolve Disputes with us on an individual basis, and you may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not permitted for any Disputes or for any other reason related to these Terms.
(iii)This Terms is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision. In the event that the agreement to arbitrate set forth in this Section is found not to apply to you (or as otherwise expressly set forth in the Terms), any legal suit, action or proceeding arising out of or related to these Terms shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in Los Angeles County, California, and each party irrevocably submits to the exclusive jurisdiction of such courts. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. You and we each agree to waive our respective right to a jury trial.
(iv)Regardless of any law to the contrary, any Dispute must be filed within one (1) year after such Dispute arose, or else that Dispute will be barred forever.
17. Miscellaneous
(a)These Terms constitutes the sole and entire agreement between you and us with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
(b)You shall not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of your obligations or performance, under these terms, without our prior written consent, which consent we may give or withhold in our sole discretion.
(c)These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any Third Party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Terms.
(d)These Terms may be amended, modified or supplemented by Company from time to time and without notice to you, and, if applicable, your clicking the “I Agree” at the time of purchasing a Product signifies Your agreement to the most-current version of the Terms with respect to such Product purchase. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(e)If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.