Last Update: June 18, 2020
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.
ACCEPTANCE OF THIS AGREEMENT
The terms and conditions stated herein (collectively, this “Agreement”) constitute a legal agreement between you and Pet Services Technologies, LLC, d/b/a Barkly Pets, a Metamorphosis Partners, LLC company (the “Company”). The terms govern your access to, use of, and participation in the Platform made available by Barkly (“Barkly,” “we,” “our,” or “us”) .
All references to “you” or “your,” as applicable, means the person who accesses, uses, and/or participates in the Platform in any manner, and each of your heirs, assigns, and successors.
You acknowledge that Barkly is a technology services provider that does not provide pet care services. In order to use the Barkly Platform, you must agree to the terms and conditions that are set forth below. Upon your execution (electronic or otherwise) of this Agreement, you and Barkly shall be bound by the terms and conditions set forth herein. This Agreement, including the BINDING ARBITRATION AND CLASS ACTION WAIVER CONTAINED HEREIN govern your access to, use of, and participation on the Barkly Platform.
Barkly reserves the right, in its sole discretion, to modify these Terms and any other documents incorporated by reference herein, at any time without prior notice. Barkly will notify you of changes by posting on the Platform, sending you a message, and/or otherwise notifying you when you are logged into your account. Modifications will become effective thirty (30) days after the earliest of: (a) modifications being posted on the Platform; (b) Barkly’ transmission of a message to you about the modifications; or (c) you are otherwise notified when you are logged into your account. Your use of the Platform after the expiration of thirty (30) days shall constitute your consent to the changes. If you do not agree, you may not access or use the Platform.
ADDITIONAL TERMS AND POLICIES
As detailed below, if you are a Walker in certain areas, which are defined further in ELIGIBILITY, WALKER REPRESENTATIONS, WARRANTIES, AND USE OF THE PLATFORM, your use and access to the Platform may also be governed by an additional Independent Contractor Agreement, acknowledged by you at the time of your registration as a Walker and made available to you via the Walker Portal at https://portal.barklypets.com.
“Barkly Content” means all Content Barkly makes available on or through the Platform, included any Content licensed from a third party, but excluding User Content.
“Collective Content” means, collectively, Barkly Content and User Content.
“Content” means text graphics, images, music, software, audio, video, information or other materials, including but not limited to profile information, and other information or materials made available on or through the Platform.
“Pet Owner(s)” means a person who is registered on the Barkly Platform to receive quotes for Walker Services, requests quotes for Walker Services, or otherwise uses the Platform to receive, pay for, review, or facilitate the receipt of Walker Services.
“Platform” means all Barkly websites, mobile or other applications, software, processes and any other services provided by or through Barkly.
“User” means any person who is registered on the Barkly Platform including both Pet Owners and Walkers.
“User Content” means all Content submitted, posted, uploaded, published, or transmitted on or through the Platform by any User of the Platform, including but not limited to photographs, profile information, descriptions, postings, reviews, requests, messages, and payments made through the Platform, but excluding Barkly Content.
“Walker(s)” means a person or entity who is registered on the Platform to send quotes for Walker Services or otherwise uses the Platform to offer, provide, receive payment for, or facilitate the provision of Walker Services.“Walker Services” means the Pet Care Services listed, quoted, scheduled, offered or provided by Walkers, or sought, scheduled or received by Users, through the Platform.
ELIGIBILITY, WALKER REPRESENTATIONS, WARRANTIES, AND USE OF THE PLATFORM
Access to and use of the Platform is only available to individuals who are at least 18 years old and can form legally binding contracts under applicable law. By accessing or using the Platform, you represent and warrant that you are eligible.
Barkly is not in the business of providing Pet Care Services. We are not a pet care service provider. Walkers understand and agree that by creating and maintaining an account on the Platform, they receive only the ability to use the Platform to access Pet Owners interested in receiving their Walker Services and related tools, including but not limited to the ability to message those Pet Owners or schedule appointments, that facilitate Walker Services. Walkers understand and agree that using the Platform does not guarantee that anyone will engage them for Walker Services.
By registering and using the Platform to offer, post, or provide Pet Care Services, you represent and warrant that you are properly and fully qualified and experienced, and licensed, certified, bonded, and insured, as required by applicable laws or regulations to which you may be subject in the jurisdictions(s) in which you offer your Walker Services.
Walkers understand and agree that they are customers of Barkly, and are not Barkly employees, joint venturers, partners or agents. If you are registering to provide Walker Services within certain zip codes, defined here, you acknowledge and agree that you are subject to an additional Independent Contract Agreement. Whether subject to this Independent Contractor Agreement or not, you acknowledge and agree that Barkly does not, and shall not be deemed to, direct or control you generally or in your performance under this agreement specifically, including in connection with your Walker Services, or acts or omissions. Walkers acknowledge that: a) provide their own equipment; b) determine their own work schedule; and c) retain the option to accept or decline any Pet Owner requests, or to cancel any accepted Pet Owner request, subject to Barkly’ then-current cancellation policies.
Barkly does not control, and has no right to control, the services a Walker provides (including how the Walker provides such services) if the Walker is engaged by a Pet Owner or any other person, except as specifically noted herein. Barkly has no right to require you to wear a uniform or any clothing displaying Barkly or any of its Affiliate’ names, logos, or colors. You acknowledge and agree that you have complete discretion to provide services or otherwise engage in other business or employment activities. For the sake of clarity, and to reiterate, Walkers are customers of Barkly.
Barkly may provide Walkers with access to third party consumer reporting agencies that perform among other things, personal identification verification services (“Identity Verification”) or criminal record checks, sex offender registry checks, motor vehicle record checks and/or identification verifications (collectively, “Background Checks”). Barkly does not provide, and is not responsible or liable in any manner for, the Background Checks or Identity Verifications, and we do not endorse or make any representations or warranties regarding the reliability of such Background Checks or Identity Verifications or the accuracy, timeliness or completeness of any information in the Background Checks or Identity Verifications. We do not independently verify information in the Background Checks or Identity Verifications.
As a Walker, it is your choice to undergo a Background Check or Identity Verification to serve as an element of your Walker Services. If you undergo a Background Check or Identity Verification via the Barkly Platform, you hereby consent to the collection, use and disclosure of the information in the Background Check or Identity Verification, and you agree to provide complete and accurate information for your Background Check and Identity Verification. You understand and agree that Barkly may, in its sole discretion, review and rely on the information in the Background Check or Identity Verification in deciding whether to suspend or terminate or investigate a complaint about your Walker Services, but also that we are not obligated to do so, and are not responsible or liable in any way in the event that any information in any Background Check or Identity Verification is not accurate, timely or complete. If you are the subject of a Background Check or Identity Verification, you may contact the applicable third-party consumer reporting agency to dispute the accuracy, timeliness or completeness of such information. You agree that Barkly’s rights and obligations under the Arbitration and Class Action Waiver section of this Agreement endure to the benefit of the consumer reporting agency used for Background Checks or Identity Verification in respect of any claim that would be subject to Arbitration if brought against us. Barkly reserves the right to suspend or terminate your access to the Barkly Platform based on information in the Background Check or Identity Verification or for any other reason, or no reason, in our sole discretion.
If you already possess and wish to use a third-party Background Check or Identity Verification from a consumer reporting agency rather than accessing a Background Check or Identity Verification via Barkly, you may submit the results of the check by emailing email@example.com. To be approved, the self-submitted Background Check or Identity Verification must have been conducted within the previous sixty (60) days. You understand and agree that Barkly may reject your self-submitted Background Check or Identity Verification for any reason, or no reason, in its sole discretion.
Pet Owners remain fully responsible to evaluate and investigate their Walkers. Be aware of the following limitations in Background Checks: Except as otherwise expressly provided in these Terms or through the Platform, Barkly does not automatically run Background Checks on Walkers. Background Checks may vary by type, breadth, and depth. Records not available to third-party consumer reporting agencies will not be included in the results. Not all arrest logs and records, conviction and correction records, sex offender registries and motor vehicle records are available in all jurisdictions. In many jurisdictions there is a delay before arrest logs and records, conviction and correction records, sex offender registries and motor vehicle records are included in Background Checks. Dismissed cases, arrests not resulting in convictions, arrests or convictions in foreign countries and nolle prosequi (abandonment of prosecution) may not be reported. Traffic violations are not included unless a jurisdiction reports them as criminal offenses. In the jurisdictions where traffic violations are reported as criminal offenses, such traffic violations may be included in the results as misdemeanors or felonies.
ACCOUNT REGISTRATION AND OTHER SUBMISSIONS
Pet Owners may access portions of the Platform without registering for an account. To access and participate in certain features of the platform, you will need to create a password-protected account (“Account”). You may register for an Account using certain third-party accounts and log-in credentials, such as your Facebook or Google credentials. You agree to provide accurate, current, and complete information during the registration or request submission process and at all other times when you use the Platform, and to update information to keep it accurate, current, and complete. You are solely responsible for safeguarding your Barkly password. You are solely responsible for all activity that occurs on your Account, and you will notify Barkly immediately of any unauthorized use. Barkly is not liable for any losses by any party caused by an unauthorized use of your Account. Notwithstanding the foregoing, you may be liable for the losses of Barkly or others due to such unauthorized use. Your account is nontransferable except with Barkly written permission and in line with Barkly policies and procedures.
Walkers acknowledge and agree that after receiving your Walker Services, Pet Owners will be prompted to provide a rating of you and your Walker Services, and optionally, to provide comments or feedback.
You acknowledge that Barkly desires that Pet Owners have access to high-quality and professional services. In order to continue to receive access to the Barkly Platform, you must maintain an average rating that exceeds the minimum average acceptable rating established by Barky Pets at current time. Your average rating is intended to reflect Pet Owners’ satisfaction with your Walker Services. In the event your rating falls below the minimum average, Barkly will notify you and may provide you, in Barkly’ sole discretion, a limited period of time to raise your average rating. Barkly reserves the right to deactivate your access to the Platform.
Barkly reserves the right to use, share, and display ratings and comments in any manner in connection with the business without attribution to you or your approval. You acknowledge and agree that Barkly is a distributor (without any obligation to verify) and not publishers of Pet Owner ratings and comments, provided that Barkly reserves the right to edit or remove comments in the event that such comments include objectionable content, an individual’s name or other personal information, or violate any privacy laws, other applicable laws, or Barkly’ content policies.
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit User Content. By making available any User Content on our through the Platform, you hereby grant to Barkly a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content on, through, by means of or to promote, market or advertise the Platform or Walker Services, or for any other purpose in our sole discretion, except that the contents of private messaging through the Platform will not be used by Barkly in public advertising. In the interest of clarity, the license granted to Barkly shall survive the termination of the Platform or your Account. Barkly does not claim ownership rights in your User Content and nothing in this Agreement will be deemed to restrict rights that you may have to use and exploit any such User Content submitted, posted, uploaded, published, or transmitted on or through the Platform by you.
You acknowledge and agree that you are solely responsible for all User Content that you make available on or through the Platform. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all User Content that you make available on or through the Platform or you have all rights, licenses, consents, and releases that are necessary to grant to Barkly the rights in such User Content; and (b) neither the User Content nor your posting, uploading, publication, submission, or transmittal of the User Content or Barkly’ use of your User Content (or any portion thereof) on, through, or by means of the Platform will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. While it has no obligation to do so, you agree that Barkly may proofread, summarize, or otherwise edit and/or withdraw your User Content, and you understand it remains your sole responsibility to monitor your User Content and ensure that such edited Content is accurate and consistent with your representations and warranties in this Agreement.
Barkly reserves the right, at any time and without prior notice, to remove or disable access to User Content that we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Platform or users, or for any other reason.
As a User of the Platform, you may not:
- Use another person’s Account, misrepresent yourself or Walker Services offered through the Platform, misrepresent your identity or qualifications, misrepresent a project or other information in a quote request, or post Content in any inappropriate category or areas on the Platform;
- Use any automated system but not limited to robots, spiders, offline readers, or scrapers to access the Platform for any purpose without Barkly Pet’s prior written approval; provided however, that the operators of public search engines may use spiders or robots to copy materials from the Platform for the sole purpose of created publicly available searchable indices of the materials;
- In any manual or automated manner copy copyrighted text or otherwise misuse or misappropriate the Platform information or Content including but not limited to, for use on a mirrored, competitive, or third-part site;
- Transmit more request messages through the Platform in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser;
- Take any action that (a) may unreasonably encumber the Platform’s infrastructure; (b) interferes or attempts to interfere with the proper working of the Platform or any third-party participation; (c) bypass measures that are used to prevent or restrict access to the Platform; (d) circumvents, disables or otherwise interferes with security features of the Platform; (e) distributes viruses or any other technologies that may harm Barkly or its Users; (f) uses the Platform in a way that violates any copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights; or (circumvents or manipulates Fee (defined herein) structure, billing or Fees owed;
- As a Walker, use the Platform in any manner that circumvents your obligation to pay Barkly for access to services provided by the Platform;
- Collect, harvest, or publish any personally identifiable data including but not limited to names or other account information, from the Platform, or use the communication systems provided by the Platform for any reason not explicitly authorized by these Terms, including commercial solicitation purposes;
- Recruit, solicit, or contact in any form Walkers or Pet Owners for employment or any other use not specifically intended by the Platform;
- Take any inappropriate or unlawful actions, including the submission of inappropriate or unlawful Content to or through the Platform, including Content that is harassing, hateful, illegal, profane, obscene, defamatory, threatening, or discriminatory, or that advocates, promotes, or encourages inappropriate activity, conduct that would be considered a criminal offense, or conduct that would give rise to civil liability or violate any law;
- Submit User Content that damages the experience of any User including but not limited to (a) requests to download non-Barkly mobile applications and/or links that direct the User to mirrored websites where the user must enter redundant information with what has already been entered on the Platform, (b) solicit offers to provide Walker Services outside of Barkly, or (c) use a profile page to promote services not offered on or through the Platform;
- Take any action that may undermine the efficacy or accuracy of reviews or ratings systems;
- Fail to perform Walker Services purchased from you as promised, unless the Pet Owner fails to materially meet the terms of the mutually agreed-upon agreement for the Walker Services or refuses to pay, or a clear typographical error is made, or you cannot authenticate the Pet Owner’s identity;
- Solicit Walker Services with no intention of following through with your use of or payment for the Walker Service;
- Undertake any activity or engage in any conduct that is inconsistent with the business or purpose of the Platform; and
- Attempt to indirectly undertake any of the foregoing.
BARKLY FEES, AND TAXES
In connection with your use of Barkly’ Platform, Barkly charges certain fees (“Barkly Fees” or “Fees”).
As a Walker, Barkly may require you to pay an activation fee for your profile. Barkly may also require you to pay ongoing monthly fees for continued access to the Platform or to receive certain services on the Platform, including but not limited to being matched with and receiving requests from Pet Owners. As a Walker, Barkly may automatically charge your stored payment method on a monthly basis for your access to, and use of, the Platform to list your Walker Services. Fees for additional products or services, including ongoing products or services, will be presented to you before you use such products or services. In order to use Barkly, you must have at least one valid payment method stored on file. Except as otherwise described herein, all sales on Barkly are final and non-refundable.
Default Payment Method. For monthly charges of Walkers, Barkly will first attempt to charge the default payment method. In the event that Barkly is unable to charge that payment method for any reason, including but not limited to, exceeding a payment method’s credit limit, payment method cancellation, a payment method being out of date, or payment method details being incorrect, you agree that Barkly may charge any other payment method associated with your account. If your payment details change, your card provider may provide us with the updated card details. We may use these new details in order to help prevent any interruption to the Walker Services. If Barkly is unable to charge the default payment method, Barkly will attempt to charge any other payment methods associated with your Account in the order in which they were most recently provided, used, or updated on the Platform, charging the most recently provided, used, or updated valid payment method first.
As a Pet Owner, Barkly may facilitate the payments between you and your Walker for requested and received Walker Services. Barkly may include a service fee for these payments. Any fees that Barkly may charge you are due immediately and are non-refundable. Pet Owners agree to pay the amount set by Barkly (or the amount posted by the Walker in some circumstances).
Pet Owners may elect to cancel Walker Services at any time. Cancelations of Walker Services are subject to our then current cancelation policies (or the Cancelation Policy posted by the Walker in some circumstances.)
Penalty Fees. Barkly may also charge penalty Fees for fraud, misconduct, delayed payments, or other violations of this agreement, as determined in our sole discretion.
You agree to pay all applicable Fees or charges based on the Fee and billing terms then in effect, regardless of whether you have an active Account. Charges shall be made to the payment method designated at the time you accrue a Fee. If you do not pay on time or if Barkly cannot charge a payment method for any reason, Barkly reserves all rights permissible under law to recover payment and all costs and expenses incurred, including reasonable attorneys’ fees, in our pursuit of payment. If any Fee is not paid in a timely manner, or we are unable to process your transaction using the payment method provided, we reserve the right to terminate or suspend your Account.
Taxes. Payments required by these Terms may be stated exclusive of all taxes, duties, levies, fines or similar government assessments, including sales and use taxes, value-added taxes, goods and service taxes, excise, business service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon (collective, “Taxes”). Certain jurisdictions, however, may require us to collect Taxes from you in connection with the purchase of, payment for, access to, or use of the Platform to request or list Walker Services, and you shall be responsible for and bear Taxes associated with the purchase of, payment for, access to, or use of the Platform. Charges are inclusive of applicable Taxes where required by law. You hereby confirm that Barkly can determine your appropriate jurisdiction for tax purposes however it deems appropriate or as required by law, and you agree to pay taxes to Barkly when Barkly includes a charge for taxes on any invoice. You also understand and agree that you are solely responsible for determining your own tax reporting and sales and use tax collection requirements in consultation with your own tax advisers, and that we cannot and do not offer specific tax advice to Walkers.
You acknowledge and agree that you are required to complete all tax registration obligations and calculate and remit all tax liabilities related to your Walker Services as required by applicable law. You further acknowledge and agree that you are responsible for your taxes on your own income arising from your Walker Services.
LOCATION BASED SERVICES
You acknowledge and agree that your geo-location information must be provided to the Platform via your mobile device to provide your listed Walker Services. You acknowledge and agree that: (a) your geo-location information may be obtained by Barkly; (b) your approximate location may be displayed to the Users while performing Walker Services for said User; and (c) your general location and an associated radius of where you perform Walker Services may be displayed publicly on your profile page. In addition, Barkly may monitor, track and share with third parties geo-location information obtained through the Platform for safety and security purposes.
In order to ensure appropriate charging of Fees and to enforce these Terms, Barkly may track the occurrence of communications between You and Users that occur off of the Platform via email, phone call, SMS text message, third-party websites, or any other means, whether initiated by you or a User. In order to track the occurrence of such communications, Barkly may obscure User contact information in a User profile, replace User contact information with a different piece of contact information that will forward to the User, or take any other step reasonably calculated to track the occurrence of such communications. Except as explicitly stated herein, we will not record or review the content of any communications that do not come into contact with Barkly Platform unless we first obtain your permission.
If you send text messages with a User using the telephone number for that user on the Platform, we may use a third-party service provider to track these text messages. We track these text messages for fraud prevention, to ensure appropriate charging of Fees, to enforce these Terms, and for quality and training purposes. As part of this process, Barkly and its service provider will receive in real time and store data about your text message, including the date and time of the text message, your phone number, and the content of the text message.
The Barkly Platform may facilitate payments between Pet Owners and Walkers (“Marketplace Payments”) through our payment processing partner, Stripe. Walkers who receive Marketplace Payments from Users on Barkly must agree to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. As a walker, by agreeing to these terms or continuing to operate as a Walker on Barkly, you agree to be bound by the Stripe Connected Account Agreement and Stripe Services Agreement, as those agreements may be modified by Stripe from time to time. As a condition of receiving payment processing services through Stripe, you agree to provide Barkly with accurate and complete information about you and your business, and you authorize Barkly to share this information and transaction information related to your use of the payment processing services by Stripe.
As a Pet Owner making a Marketplace Payment through Stripe, you agree to pay all amounts you owe when due using your preferred payment method. You further authorize Stripe to charge your preferred payment method for amounts you owe when they are due, whether they are recurring or one-time payments. You must keep all payment information you provide us up-to-date, accurate and complete. Do not share your payment card, bank account or other financial information with any other User. We take steps to secure all payment method and other personal identifiable financial information, but we expressly disclaim any liability to you, and you agree to hold us harmless for any damages you may suffer as a result of the disclosure of your personal financial information to any unintended recipients.
Barkly may enable you to make Marketplace Payments using credit, debit, or prepaid cards, by linking your bank account, or by any other payment method we support. We reserve the right to cancel your ability to make payments with one or more of the payment methods you have authorized in our sole and absolute discretion.
You may receive certain offers from Barkly (“Promotions”), including but not limited to discounted or free use of the Platform for a limited period. Any promotions are offered at Barkly discretion, and may be revoked at any time and for any reason.
You are only eligible for any benefits described in the Promotion if (a) you received a communication directly from Barky Pets offering you that Promotion, (b) you satisfy all the requirements identified in that communication; and (c) you maintain an account in good standing with Barkly. We may condition receipt of a benefit described in a Promotion in any manner we see appropriate, including limiting eligibility to a subset of Users, to specific categories, or to certain dates. To be eligible for a benefit described in a Promotion, you may need to take a specific action (including but not limited to signing up for a service) or make a payment for specific services.
Any benefits from participating in the Promotion, requirements of accepting the offer, and any other conditions to receive any benefit described in the Promotion will be disclosed to you. After a Promotion ends, regardless of whether you have already satisfied the requirements, you will be ineligible to receive those benefits. Notwithstanding anything to the contrary, Barkly may revoke a benefit if we believe that you have not satisfied the Promotion requirements, including maintaining an Account in good standing.
DISPUTES BETWEEN OR AMONG USERS
Barkly values our Users, and we understand that occasionally disputes may arise between or among them. Our goal is to provide tools to help users resolve such disputes independently. In the rare event a dispute regarding a interaction related to the Platform cannot be resolved independently, you agree, at Barkly request, to participate in good faith, to the extent you are reasonable able to do so, in a neutral resolution or remediation conducted by Barkly or a neutral third-party mediator or arbitrator selected by Barkly. Notwithstanding the foregoing, you acknowledge and agree that Barkly is under no obligation to become involved in our imposed resolution in a dispute between or among users or any third party.
INTELLECTUAL PROPERTY RIGHTS
Barkly Content is protected by copyright, trademark, and other laws of the United States, foreign countries, and international conventions. Except as expressly provided in this Agreement, Barky Pets and its licensors exclusively own all right, title, and interest in and to the Platform and Barkly Content, including all associated intellectual property rights. All trademarks, service marks, logos, trade names and any other proprietary designations of Barkly used herein are trademarks or registered trademarks of Barkly.
YOUR LICENSE TO USE THE PLATFORM
Subject to your compliance with these Terms, Barkly hereby grants you a limited, non-exclusive, revocable, nontransferable, and non-sublicensable license to reproduce and display Collective Content (excluding any software source code) solely for your personal and non-commercial use and only in connect with your access to and participation in the Platform. All rights not expressly granted to you are reserved by Barkly and its respective licensors.
You will not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise provide or make available to any other party the Barkly Platform in any way; (b) modify or make derivative works based upon the Platform; (c) improperly use the Platform; (d) reverse engineer, decompile, modify, or disassemble the Platform. In addition, you shall not, and shall not allow any other party to access or use the Barkly Platform to: (i) pose as you to request or provide Walker Services; (ii) design or develop a competitive or substantially similar product or service; (iii) copy or extract any features, functionality or content thereof; or (iv) attempt to gain unauthorized access to the Barkly Platform or its related systems or networks. The Platform and Collective Content are provided to you AS IS.
Barkly does not endorse any User or any Walker Services, and Barkly is not a party to any agreements between or among users. No agency, partnership, joint venture, or employment is created as a result of these Terms or any users’ use of the Platform, including but not limited to any scheduling of Walker Services. Neither Barkly nor any Users of the Platform may direct or control the day-to-day activities of another User, or create or assume any obligation on behalf of the other. Users are required by these Terms to provide accurate information, and although Barkly may take additional checks and processes designed to help verify or check the identities or backgrounds of users, we do not make any representation about, confirm, or endorse any user of their purported identity or background.
Any reference on the Platform to a Walker being licensed or credentialed in some manner, or “badged,” “best of,” “top,” “background checked” (or similar language) designations indicates only that the user has completed a relevant account process or met user review standards, and does not represent anything else. Any such description is not an endorsement, certification, or guarantee by Barkly and is not verification of their identity and whether they or their Walker Services are licensed, insured, trustworthy, safe or suitable. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions about the identity and suitability of Walkers who you request for Walker Services via the Platform. You should always exercise responsibility, due diligence, and care when deciding whether to have any interaction with any other user.
The Collective Content may contain links to third-party websites, offers, or other events/activities not owned or controlled by Barkly. We do not endorse or assume any responsibility for any such links, and if you access them, you do so at your own risk.
By using the Platform, you understand and agree that any legal remedy or liability that you seek to obtain for actions or omissions of other users or other third parties will be limited to a claim against those particular users or other third parties. You agree not to attempt to impose liability or seek any legal remedy from Barkly with respect to such actions or omissions.
Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party (“Confidential Information”). Confidential information includes data about the Barkly Platform, User Information, and the transaction volume, marketing, and business plans, business, financial, technical, operational and such other non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.
Each party acknowledges and agrees that: (a) all Confidential Information should remain the exclusive property of the disclosing party; (b) shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party; and (d) it shall return or destroy all Confidential Information of the disclosing party upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Barkly, its internal record-keeping requirements.
Disclosure of Your Information. Subject to applicable law, Barkly may, but shall not be required to provide you, an insurance company and/or relevant authorities and/or regulatory agencies any information including personal information (e.g. information obtained about you through any background check) about you or any Walker Services provided hereunder if: (a) there is a complaint, dispute, or conflict, including an accident between you and a User; (b) it is necessary to enforce the terms of this Agreement; (c) it is required in Barkly’ sole discretion, by applicable law or regulatory requirements; (d) it is necessary, in Barkly’ sole discretion, to (1) protect the safety, rights, property, or security of Barkly; (2) to protect the safety of the public for any reason including the facilitation of insurance claims related to your Walker Services; (3) to detect, prevent or otherwise address fraud, security, or technical issues. You understand that Barkly may retain your personal data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated.
REPRESENTATIONS AND WARRANTES; DISCLAIMERS
By You. You hereby represent and warrant that: (a) you have full power and authority to enter into this Agreement and perform your obligations hereunder; (b) you have not entered into, and during the term will not enter into, any agreement that would prevent you from complying with this Agreement; and (c) you will comply with all applicable laws in your performance of this Agreement.
DISCLAIMER OF WARRANTIES. YOUR USE OF THE BARKLY PLATFORM AND PROVISIONING OF YOUR WALKER SERVICES SHALL BE SOLELY AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT BARKLY DOES NOT HAVE AN OBLIGATION, BUT RESERVES THE RIGHT FOR ANY REASON TO (A) MONITOR OR REVIEW USER CONTENT; OR (B) FOR ANY PERMISSABLE PURPOSE, CONDUCT IDENTITY VERIFICATION, BACKGROUND (INCLUDING CRIMINAL BACKGROUND) OR REGISTERED SEX OFFENDER CHECKS ON ANY WALKER. BARKLY PROVIDE, AND YOU ACCEPT, THE BARKLY PLATFORM AND THE ON AN “AS IS” AND “AS AVAILABLE” BASIS. BARKLY DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE BARKLY PLATFORM OR : (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY REQUESTS FOR YOUR WALKER SERVICES. BARKLY FUNCTIONS AS A LEAD GENERATION AND RELATED SERVICE ONLY AND MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE USERS WHO MAY REQUEST OR RECEIVE YOUR WALKER SERVICES, AND BARKLY DOES NOT SCREEN OR OTHERWISE EVALUATE USERS. BY USING THE BARKLY PLATFORM 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 BARKLY PLATFORM. NOTWITHSTANDING BARKLY’ APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF YOU FOR THE PURPOSE OF ACCEPTING PAYMENT FROM USERS ON YOUR BEHALF, BARKLY EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER OR OTHER THIRD PARTY.
You shall indemnify and hold harmless Barkly and its respective officers, directors, employees, agents, successors, and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes arising out of our related to: (a) your breach of your representations, warranties, or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators, and governmental authorities) directly or indirectly related to your provisioning of your Walker Services.
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 PLATFORM, YOUR OFFERING OR PROVISIONING OF WALKER SERVICES, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF BARKLY, WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. BARKLY SHALL NOT BE LIABLE UNDER OR RELATED TO THIS AGREEMENT FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (A) ANY INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND; (B) YOUR OR ANY THIRD PARTY’S PROPERTY DAMAGE, OR LOSS OF INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE; (C) THE COST OF SUBSTITUTE PRODUCTS OR SERVICES; OR (D) ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECT WITH THESE TERMS.
EXCEPT FOR BARKLY’ OBLIGATION TO PAY AMOUNTS DUE TO YOU FOR THE PROVISION OF YOUR WALKER SERVICES, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT WHICH ARE APPLICABLE THERETO, IN NO EVENT SHALL THE LIABILITY OF BARKLY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF SERVICE FEES ACTUALLY PAID TO OR DUE TO BARKLY HEREUNDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
ACCOUNT SUSPENSION OR TERMINATION
This agreement shall commence on the date accepted by you and shall continue until terminated as set forth herein.
We may, in our sole discretion, with or without cause, with or without prior notice and at any time, decide to limit, block, suspend, or deactivate your Barkly account in whole or in part.
If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Platform or your User Content, or receive assistance from Barkly support teams; (b) if appropriate in our sole discretion, we may communicate to other Users that your Account has been terminated, blocked, suspended, deactivated, cancelled, or otherwise penalized in any way, and why this action has been taken; and (C) you will not be entitled to any compensation for Walker Services cancelled or delayed as a result of your account termination.You may cancel your use of the Platform and/or terminate your Account at anytime by emailing firstname.lastname@example.org. Please note that if your Account is canceled, we do not have any obligation to delete or return to you any Content that you have posted to the Platform, including, but not limited to any reviews.
ARBITRATION AND CLASS ACTION WAIVER
Arbitration Provision. You agree that any dispute, claim or controversy arising out of or relating to these terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Application (collectively, “Disputes”) will be settled by binding arbitration between you and Barkly, except that Barkly 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 Barkly are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and, if applicable, 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/arb_med [http:// www.adr.org/arb_med ] or by calling the AAA at 1-800 778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
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 arbitrator will be selected by the parties from the AAA’s roster of 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.
Unless you and Barkly otherwise agree, the arbitration will be conducted in the State of New York. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Barkly 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.
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.
Class Action Waiver. The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND BARKLY 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. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, privacy or unauthorized use of intellectual property in state of federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relieve in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth by sending (from the email address associated with your Barkly account) written notice of your decision to opt out to email@example.com with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of the later of the Effective Date of these Terms or your first use of the Platform; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, Barkly will not be bound by them.
Changes to This Section. Barkly will provide thirty (30) days’ notice of any changes affecting the substance of this Arbitration and Class Action Waiver section by posting on the Barkly Platform, sending you a message, or otherwise notifying you when you are logged into your account. Amendments will become effective thirty (30) days after they are posted on the Barkly Walker Portal or sent to you.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Platform.
Survival. This Arbitration and Class Action Waiver section shall survive any termination of your Account or the Platform.Third-Party Beneficiary. You and Barkly acknowledge that any third party consumer reporting agency that Barkly uses to perform background checks on Walkers is an express and intended third party beneficiary of this arbitration provision and as such, the terms of this Arbitration provision will inure to the benefit of the consumer reporting agencies that may be enforced by them. Accordingly, you agree that any dispute that arises between you and a consumer reporting agency that relates to or arises out of this Agreement or any aspect of your relationship with Barkly will be resolved by binding arbitration. If any court or arbitrator determines that this third-party beneficiary subsection is void or unenforceable for any reason, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the remainder of the section shall remain enforceable, meaning that the class action waiver and the mutual obligation to resolve disputes between you and Barkly through binding arbitration remains enforceable.
The Terms and the relationship between you and Barkly shall be governed in all respects by the laws of the State of New York, without regard to its conflict of law provisions. You agree that any claim or dispute you may have against Barkly that is not subject to arbitration must be resolved by a court in the State of New York.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Platform or your Walker Services offered therein must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.
Section Headings. The section headings in this Agreement are for convenience only and have no legal or contractual effect.
Contact Information. If you have any questions about this Agreement of the Platform, please contact us by sending an email to firstname.lastname@example.org, or by writing to the Company at 7580 Faye Ave, , La Jolla, California 92037.
By registering an account on the Barkly Platform, you expressly acknowledge that you have read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that you agree to be bound by the terms and conditions of this Agreement, and that you are legally competent to enter into this Agreement with Bark