WELCOME to Iowa Pet Alert!
Iowa Pet Alert [“IPA”] is a web-based community sponsored by The Pet Project Midwest, an Iowa nonprofit organization. IPA’s mission is to access the power of the internet to help reunite lost or found pets with their owners.
As a User of this Site, You can participate by listing a lost or found pet that will be available for other Users to view. The IPA Site has functions, features, applications, and content located thereon, as now exiting or that may be added in the future, used to carry out our mission of reuniting pets with their owners. We hope that Users of this Site will experience the joy that comes from reuniting a lost and found pet with the pet’s loving owner.
As a User, you will create a unique Pet Profile, that identifies the lost or found pet [e.g., photo, video, text], provides Your contact email and phone number, and discloses when and where the pet was lost or found, as the case may be. Such a Pet Profile, whether You lost a pet or found a pet, will be seen by all other Users – with the hope for match leading to a reunification.
2. Acknowledgement and Acceptance of Term of Use Agreement
The Pet Project Midwest [“The Pet Project” or “we” “our” or “us”] acknowledges that this TOU agreement forms a binding legal agreement between us -- BUT ONLY IF You also consent to be bound by them. You must consent to bound by this TOU agreement in order to use Site.
Just to be clear, If You select ‘I Agree’ then, for good and valuable consideration, this TOU agreement form a binding and enforceable written contract between You and The Pet Project Midwest.
3. Changes to or Discontinuance of the Site
We reserve the right to change, remove, add, or suspend all Site related functions, features, applications, and/or content at any time without notice. We reserve the right to discontinue the Site altogether at any time without notice and without any obligation to You or to provide You with access to any User Generated Content including Pet Profiles (see Section 8 below). You have no vested rights in the Site.
Also, we may change, modify, revise, and restate this TOU agreement from time to time and on successive occasions by providing You access to the newly revised version of this TOU agreement on through the Site with their new effective date. If we do change or modify this TOU agreement, we will provide You with notice of the newly revised version by email or other electronic means. In response, if You so choose, You will be permitted a reasonable opportunity to cease Your use of the Site and terminate this Agreement. You are solely responsible for regularly reviewing this TOU agreement available on through the Site so that You will be apprised of the newest revised version. You further agree that notice by email or text to the email address or mobile phone associated with a Pet Profile sent no less than 20 days prior to the effective date of the newly revised TOU will constitute reasonable prior notice to You of the proposed changes or revisions. Your continued use of the Site after having been afforded such reasonable prior notice constitutes Your continued and renewed acceptance of this TOU agreement as newly revised.
5. Eligibility, Registration, User ID, and Passwords
You must register through the Site in order to access and use the Site. You must not register if You are under 13 years of age and any person under the age of 13 years is strictly prohibited from doing so. If You are under the age of majority in Your jurisdiction (typically 18 or 19 years of age), You may register and use the Site, only with the approval of your parent or guardian, and You warrant to us that You have such permission--if You are under the age of majority. We may refuse to accept Your registration in our discretion. An example for our refusal is if we previously revoked Your account for violating this TOU agreement or for some other reason. If we are made aware of the fact that You are not eligible due to age or lack of permission, we will immediately terminate Your access to the Site.
We recognize that it is possible for You to obtain access to the Site from any jurisdiction in the world, but we have no practical ability to prevent such access. If the Site or any material on the Site, or Your registration or Your use of the Site is contrary to the laws of the place where you are located, then the Site is not intended for you, and we ask you not to use the Site or submit a registration. You are responsible for informing yourself of the laws of Your jurisdiction and complying with them, and You agree to indemnify us and hold us harmless for your failure to comply with this provision.
As part of this registration process, You will create an account on the Site that we referred to as Your Pet Profile (as further described in Section 6, below). You will select a User ID and password.
You are solely responsible for
any and all uses of Your Pet Profile (whether by You or anyone using Your account and regardless of whether You gave Your consent to another to use Your account); and
the confidentiality and security of Your User ID, password and log-in information.
You must notify us immediately of any actual or suspected breach of security or unauthorized use of Your Pet Profile. Should You forget Your password, then upon request, an e-mail containing your password will be forwarded to the e-mail address You entered during registration.
6. Pet Profile Information—Basic Rules
The Pet Profile must identify the lost or found pet [e.g., photo, video, text], contain Your name, contact email and phone number, and disclose when and where the pet was lost or found, as the case may be. Your Pet Profile information must be true, accurate, and complete and You promise to keep Your Pet Profile information as true, accurate and complete at all times.
Your Pet Profile must describe
a real pet, that either has been lost or found and is not a made-up pet; and
You, an individual person, and is not an impersonation or made-up identity;
We may use various details provided by You in Your registration to verify the authenticity of You and the described pet.
We may refuse to accept Your registration (or later deny You access to the Site) if we are made aware that You have violated this provision or if the registration contains content that is protected by trademark or proprietary rights law, or is vulgar, offensive, or otherwise inappropriate, as we may determine in our sole discretion.
7. Pet Profile Information—Use by The Pet Project
We may use descriptive information identifying for You and the pet, including specifics of reunification, for promotional and advertising purposes, but only upon Your prior consent granting us permission to do so and that describe the scope of our use. If permission is granted, we will use the information in the manner You consent to, but without any compensation or payment of any kind. For example, if consent to, we may feature You and the pet’s reunification on the Site or other social media platforms [e.g., Facebook].
8. Authorization to Access and Use the Site
Subject to Your compliance with and acceptance of this TOU agreement, we hereby grant You a limited, terminable, revocable, non-transferable, non-exclusive, non-assignable, and non-sub-licensable license to access and use the Site for the purposes of reuniting pets with their owners. You are granted no other rights whatsoever in or to the Site, or portions thereof, including but not limited to its databases, invisible pages, linked pages, underlying code, or other intellectual property the Site may contain, for any reason or use whatsoever. Also, decompiling, reverse-engineering, disassembling, or otherwise reducing the code used in any software on the Site into a readable form in order to examine the construction of such software and/or to copy or create other products based (in whole or in part) on such software, is strictly prohibited, and may subject You to criminal and civil penalties and damages.
9. User-Generated Content, Risk Assumption, Release and Indemnity, and Prohibited Content
The Site allows You to post: text, images, photos, and other materials (together with Your Pet Profile information and registration) through the Site. All of these materials shall be referred to as “User-Generated Content” or “UGC”).
You are solely responsible for all UGC posted or uploaded on the Site, or transmitted to others, by You (and by anyone using Your access to the Site). We have no control over what information, materials and/or content is included in the UGC. No UGC is reviewed by us prior to posting and therefore does not necessarily reflect our opinions or policies. We have no obligation to check the accuracy or truthfulness of any UGC, or to monitor any User’s or other person’s viewing or use of the Site.
Be aware, that any UGC You post, upload, or transmit on or through the Site is viewable by Users and other persons. We do not and cannot ever control any usage, including improper use, of Your posted UGC viewed by Users or others. Therefore, Your posting and disclosure of all UGC through the Site is done AT YOUR OWN RISK of You being harmed [such as personal injury or property damage] by conduct of another person arising from their viewing and use of such UGC. You release and indemnify, defend and hold The Pet Project, its Directors, officers, employees and agents [“Board and Staff”], harmless from any claim or lawsuit for personal injuries, damages, and losses caused to You or any other person arising from the conduct of another in connection with their viewing and/or use of such UGC.
The following is a list of Prohibited Content that Your UGC must not contain. Prohibited Content means UGC, or part thereof, that:
9.1 is unlawful or promotes or encourages illegal activity or abusive or discriminatory conduct;
9.2 violates the property, privacy and publicity rights of others;
9.3 is patently offensive or otherwise grossly objectionable, such as content that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual;
9.4 harasses or advocates harassment or bullying of another person;
9.5 is threatening, obscene, defamatory, vulgar, malicious, or libelous;
9.6 solicits personal information from anyone under the age of 18;
9.7 includes material that exploits people under the age of 18 in any manner;
9.8 displays pornographic or sexually explicit material of any kind or contains a link to an adult Web site containing any such material;
9.9 involves the transmission of ‘junk mail, chain letters, spam,’ or any other unsolicited mass mailing, e-mailing, or other communication (i.e., ‘spimming’ or ‘spamming’);
9.10 is false or misleading;
9.11 violates The Pet Project’s or a third party’s intellectual property or proprietary rights;
9.12 includes any pirated computer programs or links to them;
9.13 includes information which circumvents any copy-protection devices;
9.14 includes pirated materials (music, video, photographs, etc.) or links to such pirated files;
9.15 furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities (i.e., making or buying illegal weapons, planning or carrying out acts of terror, violating someone’s privacy, or providing or creating computer viruses);
9.16 solicits passwords or personally identifiable information belonging to others;
9.17 includes a photograph or likeness or voice recording of another person that is posted without that person’s consent;
9.18 contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
9.19 involves commercial activities or constitutes or includes any unauthorized promotion, sales, or other commercial activity such as contests, sweepstakes, barter, advertising, or pyramid schemes; and/or
9.20 promoting any political or social cause, propaganda, or call to action that is inconsistent with the use of the Site as we intended it to be used.
Posting any Prohibited Content by You (and by anyone using Your access to the Site) may, in our sole discretion, result in the termination of Your access to the Site and termination of this TOU agreement with You. We reserve the right to investigate and take appropriate action, in our sole discretion, against anyone who posts UGC containing Prohibited Content, or otherwise posts UGC which we deem inappropriate or unacceptable, including: terminating the User’s access to the Site, terminating this TOU Agreement with the User, removing the offending material or Prohibited Content from the Site; and/or reporting such violators to the appropriate legal authorities. However, we assume no responsibility to actively monitor UGC or timely modify or remove any inappropriate UGC if and when we are made aware of it.
Even though all of the above UGC is strictly prohibited, it is possible You still may be exposed to Prohibit Content or other content that may be inaccurate, hateful, offensive, indecent, objectionable, and otherwise not in conformance with the above provisions of this TOU agreement or Your standards of properness. You nevertheless agree to release and indemnify, defend and hold The Pet Project and its Board and Staff harmless from any claim or lawsuit for personal injuries, damages, and/or losses caused to You or any other person arising from such exposure.
10. Prohibited Conduct
You are solely responsible for Your conduct (and the conduct of anyone using Your access to the Site) related to the Site or its use. Your license to access and use the Site is conditioned upon Your (and anyone using Your access to the Site) proper use of the Site. Therefore, You agree that You (and anyone using Your access to the Site) shall NOT engage in any conduct that we deem inappropriate or unacceptable, including conduct that:
10.1 is illegal or that is prohibited in this TOU agreement;
10.2 uses the Site in any manner inconsistent with or in violation of this TOU agreement as well as all applicable local, state, national, or international laws and/or regulations having the force of law;
10.3 creates any UGC that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, proprietary rights, contractual rights or confidentiality rights of any party or is in violation of our rules relating to ‘Prohibited Content’ as set forth in Section 9;
10.4 creates any UGC without the required authorization of from interest party or falsely expresses or implies such authorization was validity obtained;
10.5 may cause harm minors in any way;
10.6 constitutes stalking, bullying or harassing of another or pursues efforts to contact another when under the circumstances the other refuses to engage in the interaction;
10.7 uses the User’s personal data for purposes other than establishing contact to reuniting a lost pet with its owner;
10.8 impersonates another person or entity (including an employee or representative of The Pet Project) or create a false or misleading identity;
10.9 falsely states or otherwise misrepresents Your affiliation with any person or entity;
10.10 employs another User ID or password of another that is not You;
10.11 results in the transmission, email, posting or uploading of any UGC that contains in any form software viruses or other programs, such as Trojan horses, worms, time bombs, cancelbots, computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
10.12 results in the transmission, email, posting or uploading any UGC that contains software designed to monitor or persistently reside in or on any computer software or hardware or telecommunications equipment;
10.13 results in the interference with, damage to, disruption of, or impairment of the Site, the related servers and/or networks connected to the Site, or other User’s use and enjoyment of the Site;
10.14 seeks to hack into the Site or gain unauthorized access to the Site by any means;
10.15 seeks to harvest or collect User IDs or passwords of other Users by any means;
10.16 seeks to modify, adapt, translate, or reverse-engineer any portion of the Site, or use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion or the Site;
10.17 seeks to reformat or frame any portion of the web pages that are part of the Site; cover or obscure banner advertisements on the Site;
10.18 seeks to remove any copyright, trademark, or other proprietary rights notices contained in or on the Site;
10.19 seeks to disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail, spam, chain letters, pyramid schemes,’ or any other form of such solicitation;
10.20 seeks to upload, post, or transmit unsolicited commercial emails or ‘spam’ or engage in any practice that is in any way connected with ‘spam’;
10.21 engages in any other activity deemed by The Pet Project to be in conflict with the spirit or intent of this TOU agreement and applicable law and regulations;
10.22 make any automated use of the Site, such as using scripts to add friends or send comments or messages;
10.23 advertises or solicits sales of products and Site;
10.24 seeks to engage in any commercial activity or purpose;
10.25 seeks to circumvent, disable, or otherwise interfere with security features of the Site or its features, applications, and functions; and/or
10.26 seeks to send more request messages to servers of the Site in a given period of time than a single human can reasonably manually produce in the same period by using a conventional online web browser sending one message at a time.
We may, but is under no obligation to, monitor Your conduct that may violate this Section 10. If there is a violation of this Section, we may remove any or all UGC in violation; terminate Your access to the Site; and terminate this TOU agreement with You, in our sole discretion. We reserve the right to pursue all other remedies as provided in Sections 26 and 27.
11. Good Samaritan Policy
If You believe that someone has posted UGC or otherwise has engaged in or threatens conduct that violates this TOU agreement, we ask you to promptly notify us by email at email@example.com. You must use this address if you want to ensure that your complaint is actually received by the appropriate person charged with responding to such communications.
In order to respond as quickly as possible to any complaint, please provide as much detail as possible, including: (1) the nature of the right infringed or violated (including the registration numbers of any registered copyrights or trademarks allegedly infringed); (2) a detailed description of the offending material or conduct and all facts that lead You to believe that this TOU agreement have or may be violated by the material or other conduct; (3) the precise location on the Site where the offending material is located; (4) in the case of infringement of any right-- any grounds you have to believe that the person who posted the material was not authorized to do so or did not have a valid defense (including the defense of fair use); and (5) if known, the identity of the person or persons who Posted the infringing or offending material or engaged in the offending conduct.
By lodging a complaint, You agree that the substance of your complaint shall be deemed to constitute a representation made by You under penalty of perjury under the laws of the State or jurisdiction of Your residence. In addition, You agree, at Your own expense, to defend, indemnify, and hold The Pet Project and its Board and Staff harmless against any liability or claim that may arise from Your complaint or our response to Your complaint.
Once a complaint is received, then we may, in our sole discretion and in response to the alleged violation, take or refrain from taking any action, including without limitation the following:
Decide not to investigate the matter;
Refer the matter to appropriate law enforcement agencies and cooperate with them as directed, with or without prior investigation;
Investigate the alleged violation – but take no action;
Investigate the alleged violation – and contact the posting person to advise them of the complaint and seek their response before taking any action or refraining to take action;
Investigate the alleged violation – and remove the infringing or offending UGC, in part or in its entirety, without prior notice to the posting person;
Investigate the alleged violation – and direct the complaining party to seek an independent resolution of the issue with the offending person without our involvement.
In establishing this complaint procedure, we are taking on the role of a Good Samaritan with the thought that this policy may assist in the removal or restriction of material that violates this TOU agreement and/or to remedy other offending conduct. Nevertheless, we have NO responsibility to remove materials posted on the Site or take any affirmative action in response to the complaint. In making a complaint, You agree to waive any claims or remedies that you might otherwise be able to make against us under any theory of law (including, but not limited to, intellectual property laws) arising out of or relating in any way to the offending conduct or violations that is the subject of the complaint. If we choose to take any action in response to the complaint, then You agree to indemnify, defend and hold us and our Board and Staff harmless from liability for all personal injuries, damages, and losses caused to any other person arising from or in connection with the actions taken by us in response to the complaint.
Notwithstanding this Good Samaritan provision, if the complaint concerns any infringement of a right subject to the Digital Millennium Copyright Act, then the provisions of Section 18 shall govern the handling of any complaint thereunder.
13. Communications between You and Us
You consent to receive communications from us electronically, such as emails, texts, or notices and messages on this Site. You can retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
14. Equipment and Access Connections
The Site may be made available to You through Your use of different Devices. You are solely responsible for providing, maintaining, and ensuring compatibility with the Site, all hardware, software, electrical, and other physical requirements for Your use of the Site including telecommunications and internet access connections and links, web browsers or other equipment, programs, and service required to access and use the Site. We are not responsible for any defects in Your Devices or Your inability to obtain or maintain reliable data or internet connections.
You are solely responsible for all data and/or connectivity charges that arise from the use of the Site via Your Devices. For more information about data and/or connectivity plans for a carrier, contact the carrier directly.
15. Your Proprietary and Intellectual Property Rights
By posting any UGC, You represent and warrant that: (a) You own or otherwise have the right to post Your UGC, (b) it does not contain any content in violation of Sections 9 and 10, (c) it does not violate any privacy rights, publicity rights, copyrights, contract rights, patent, trademark, trade secret, or any other proprietary or contractual rights of any person or entity. You retain all ownership rights in such UGC, and You continue to have the right to use Your UGC in any way You desire. We may use Your UGC as provided Sections 6 and 7.
16. The Pet Project’s Proprietary and Intellectual Property Rights
This Site and all intellectual property and proprietary rights related to the Site and created by The Pet Project (e.g., text, photos, page layout, design, features, functions and applications) available on or through the Site as well as all technical data and software used with the Site (software, scripts, and all other data) (collectively “Our Content”) are exclusively owned by The Pet Project. Our Content is protected by copyright, trademark, patent, trade secret, and other laws, and we own and retain all rights in Our Content and the Site. You may not use, copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any of Our Content appearing on or through the Site, without our express prior written consent. You have no proprietary rights whatsoever in the Site or Our Content. You agree that You will not alter, obscure, or otherwise remove any label signifying our copyright, trademark, or proprietary rights in or to Our Content. You acknowledge that any violation or threatened violation of any right we have in or to Our Content may result in substantial injury that is difficult, if not impossible, to ascertain and compensate in monetary damages. Therefore, in addition to any other rights or remedies that we may have, in such event we shall be entitled to seek injunctive relief against an offending party as provided in Section 27.
17. Third-Party Content
The Site may contain logos or content that originates from other third parties, such as sponsors or animal shelters. Such third-party may claim intellectual or proprietary property rights in or to this content which You must honor. You may not use, copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any third-party content appearing on or through the Site, without the express prior written consent of the owner thereof.
18. Digital Millennium Copyright Act
A. Notice of Infringement— We take intellectual property rights very seriously and demands the same from our Users. If you are a copyright owner and have a good faith belief that any material posted on or through the Site infringes on your copyrights, you may send our designated Copyright Agent a written notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C. 512, ‘DMCA’). The notice of infringement must contain the information specified below in the following format:
(i) identify in sufficient detail the copyrighted work claimed to have been infringed; if multiple copyrighted works are covered by a single notice of infringement letter, provide a representative list of such works;
(ii) identify in sufficient detail the material that is claimed to be infringing and information reasonably sufficient to permit IPA to locate the material on the Site (e.g., provide the Uniform Resource Locator, ‘URL,’ of the material claimed to be infringing);
(iii) provide information reasonably sufficient to permit us to contact you (e.g., a street address, telephone number, and e-mail address if available);
(iv) provide a statement that you have a good faith belief that the use of the copyrighted material in the manner described in the notice letter is not authorized by the copyright owner, its agent, or the law;
(v) provide a statement, made under penalty of perjury, that the information provided in the notice letter is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
(vi) provide the physical or electronic signature of the copyright owner or someone authorized to act on the owner’s behalf.
The notice of infringement letter must be submitted to The Pet Project’s Designated Copyright Agent by mail or email as set forth below.
The Pet Project Midwest
Attn: Designated Copyright Agent
4944 Franklin Ave., Suite N
Des Moines, IA 50310
Be advised that failure to comply with all of the above requirements may invalidate your Notice of Infringement under the DMCA.
Our response to a proper Notice of Infringement will be to remove or disable access to the UGC claimed to be infringing and notify the alleged infringer of your claim so he or she can submit a Counter Notice to us.
B. Counter Notice—If UGC You posted on or through the Site was removed or access was blocked and You have a good faith belief that it is not infringing on any copyrighted material, You may send us a written, Counter Notice pursuant to Section 512 of the DMCA. The Counter Notice must contain the information specified below in the following format:
(i) identify in sufficient detail the material that we have removed or to which we have disabled access and the location of the material (e.g., the URL) before it was removed/disabled;
(ii) provide Your name, address, telephone number, and email address;
(iii) a statement that You consent to the jurisdiction of the federal district court in which your address is located, and a statement that You will accept service of process from the person who provided notification of the alleged infringing activity;
(iv) provide a statement, made under penalty of perjury, that You have a good faith belief that the material was removed/disabled as a mistake or misidentification of the material; and
(v) provide Your physical or electronic signature.
The Counter Notice must be submitted to our Designated Copyright Agent by mail or email as set forth below.
The Pet Project Midwest
Attn: Designated Copyright Agent
4944 Franklin Ave., Suite N
Des Moines, IA 50310
Be advised that failure to comply with all of the above requirements may invalidate Your Counter Notice under the DMCA.
If the Copyright Agent receives Your valid Counter Notice, we may restore Your removed UGC or cease disabling it within 10-14 business days, unless we receive notice from the alleged copyright owner (who filed the initial Notice of Infringement) that said party has filed a court action seeking to stop Your alleged infringement.
19. Unauthorized Hyper-Links, ‘Framing,’ etc.
Unauthorized hyper-links, ‘Framing,’ and site references are prohibited unless expressly authorized by us. No one may hyper-link the Site, or portions thereof (including, but not limited to, logotypes, trademarks, branding, or copyrighted material), to a third-party Web site for any reason. Further, You are not allowed to reference our domain names, or any page of the Site, in any commercial or non-commercial media without our express permission. You are also prohibited from ‘framing’ the Site (e.g., You are prohibited from removing or obstructing any content or sponsorship banners or other material anywhere on the Site). You specifically agree to cooperate with us to remove or de-activate any such activities and are liable for all related damages.
20. Linked Third-Party Sites
The Site may contain as link that originates with other third parties, such as sponsors or animal shelters. These links are provided for Your convenience only and You use them at your own risk. These third-party sites may contain information or material that some people may find inappropriate or offensive. These other sites are not under our control and You acknowledge that (whether or not such sites are affiliated in any way with us) we are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites. The inclusion of such a link does not imply endorsement of any site by us or any association with its operators. Further, we cannot ensure that You will be satisfied with any products that You purchase from any third-party site that links to or from our Site since those other sites are owned and operated by independent third parties. We do not endorse any of the products or contents, nor have we taken any steps to confirm the accuracy or reliability of any of the information contained in such third-party sites. We do not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) You might be requested to give any third party. You agree that neither we, nor our Board or Staff shall not be responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with Your use of any such third-party web sites or Your access to or receipt of any content, services or goods therefrom. We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites that you visit before You use or access such sites.
21. Term and Termination
This TOU agreement will remain in full force and effect while You use the Site or are a registered User. You may terminate Your access to the Site and terminate this agreement with us at any time, and for any reason or no reason, by emailing a statement of termination and effective date thereof to firstname.lastname@example.org. We may also terminate Your access to the Site and this agreement for any reason, or no reason, at any time by sending you a statement of termination and effective date by email to the email address You have provided to us.
Once termination occurs, as of the effective date, You will have no right to use the Site. Even after termination, certain sections of this TOU agreement will remain in effect. Our intellectual property and proprietary rights, disclaimer of warranties, indemnities, limitations of liability, and miscellaneous provisions shall survive any such termination. You agree that any termination of Your access to the Site may be affected without prior notice; and You acknowledge and agree that we may immediately deactivate or delete Your access to the Site and all UGC and Pet Profile will be unavailable to You. You further release us and our Board and Staff from all liability arising out of the termination of this agreement and Your access to and use of Site, You UGC and Pet Profile.
22. Disclaimer of ALL Warranties
YOU AGREE THAT YOUR USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK. THE SITE, AND ALL MATERIALS, INFORMATION (INCLUDING, WITHOUT LIMITATION, TEXT, PHOTOS, LINKS, FEATURES, FUNCTIONS, APPLICATIONS OR ANY INFORMATION OR MATERIALS OBTAINED OR ACCESSED THROUGH THE SITE), ARE PROVIDED TO YOU ‘AS IS, WITH ALL FAULTS, and AS AVAILABLE,’ WITH NO WARRANTIES WHATSOEVER; AND WE EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM COMPUTER VIRUS, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR PROPRIETARY RIGHTS.
WE DISCLAIM ANY LIABILTY FOR THE ACCURACY, COMPLETENESS, LEGALITY, RELIABILITY, OR OPERABILITY OF INFORMATION, CONTENT, OR MATERIALS ON THE SITE, THE FUNCTIONALITY OF THE SITE, OR THE AVAILABILITY OF THE SITE.
WE DISCLAIM ALL LIABILITY FOR ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR THE LOSS OR HACKING OF ANY AND ALL OF YOUR PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN.
WE CANNOT AND DO NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULT FROM USE OF THE SITE (E.G., THAT YOU WILL FIND A LOST PET OR DERIVE ANY BENEFIT FROM USE OF THE SITE). NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR FROM OR THROUGH THE SITE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
WE DISCLAIM ANY WARRANTY THAT THE FUNCTIONS AND FEATURES MADE AVAILABLE THROUGH THE SITE WILL BE AVAILABLE, UNINTERRUPTED, OR ERROR-FREE, OF A USABLE QUALITY, THAT DEFECTS WILL BE CORRECTED, OR THAT OUR SERVERS ARE FREE OF BUGS, VIRUSES, TROJAN HORSES OR OTHER HARMFUL COMPONENTS.
WE DISCLAIM ANY AND ALL RESPONSIBILITIES AND LIABILITY FOR THE CONDUCT OF ANY OTHER USER, AND EXPRESSLY DISCLAIM THAT UGC INPUTTED BY OTHER USERS IS EITHER CORRECT OR ACCURATE.
WE ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USERS OR OTHERS THAT CAUSE YOU INJURY OR PROPERTY DAMAGE. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM ANYONE’S USE OF THE SITE, ANY UGC POSTED ON OR THROUGH THE SITE OR TRANSMITTED TO USERS OR OTHERS, OR ANY INTERACTIONS BETWEEN OR AMONG YOU AND USERS OR OTHERS, WHETHER ONLINE OR OFFLINE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO YOU. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
23. Use at Your Own Risk – IPA’s Limitation of Liability
Your use of the Site is at Your sole risk. We are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems, or traffic congestion on the Internet or at any Web site or combination thereof. We are not responsible for any injury or damage to any Devices belonging to You attributed to Your use of the Site.
Under no circumstances will we or our Board and Staff, be liable to You for any indirect, incidental, consequential, special, exemplary, or punitive damages or losses (including without limitation loss of profits, revenue, goodwill, use data, or other intangible losses), whether based in contract, tort, strict liability, or otherwise, arising out of or in connection with use of, or inability to use, the Site, whether or not we have been advised of the possibility of such damages or loss. Such limitations of liability shall apply (A) whether the damages arise from the Site or from the interruption, suspension, or termination of the Site (including such damages incurred by third parties), and (B) notwithstanding any failure of essential purpose of this limited remedy and to the fullest extent permitted by law. If You are dissatisfied with any part of the Site, your sole and exclusive remedy is to discontinue use of the Site.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation and exclusions may not apply to You. Under no circumstances shall we be liable to You for any amount exceeding fifty dollars ($50.00).
24. Indemnification by You
In addition to the indemnities contained in other provisions herein, You further agree to defend, indemnify and hold us and our Board and Staff, harmless against any claims, fines, liabilities, losses, damages (actual and consequential), suits, judgments, litigation costs, expenses, and attorney’s fees, of every kind and nature incurred, imposed on, or suffered by us or our Board or Staff and arising from or in any way related to Your use of the Site, Your conduct or Your UGC posted on the Site.
You further agree to defend, indemnify and hold us and our Board or Staff harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, arising out of or relating to: (a) Your use of the Site (including the posting by You of any UGC through the Site) in violation of this TOU agreement; (b) any other breach of this TOU agreement by You; (c) the infringement of any intellectual property or proprietary right of any person or entity carried out under or through Your conduct or access to the Site; or (d) any breach of Your representations and warranties set forth herein. You agree that in the event You cause damage that we are required to pay for, then You promise to indemnify us for all such payments made.
You will cooperate as required by us in the defense of any claim and we reserve the right to assume the exclusive defense of any claim or matter subject to indemnification by You, whether under this provision or any other provision of this TOU agreement, and You will not in any event settle any claim without our prior written consent.
25. User Disputes
You are solely responsible for Your interactions with other Users or other persons and the resolution of any dispute You have with one or more Users or other persons.
26. Dispute Resolution by Arbitration
All disputes between You and us and our Board and Staff, (including without limitation any dispute arising from this TOU agreement or from the conduct of any person) shall first be addressed through informal, direct discussions. IF THE DISPUTE CANNOT BE SETTLED THROUGH DIRECT DISCUSSIONS, THEN YOU AND US AGREE TO SUBMIT THE DISPUTE TO MANDATORY BINDING ARBITRATION, RATHER THAN GOING TO COURT.
In arbitration, there is no judge or jury, and court review of an arbitration award is limited. An arbitrator can, however, award on an individual basis the same damages and relief as a court and must follow the terms of this TOU agreement as a court would. The arbitrator may, or may not, award reasonable attorney fees to the prevailing party on grounds of fairness and equity as may be admitted by the circumstances.
You have the choice of whether the arbitration will be under the rules and procedures and be administered by the American Arbitration Association (“AAA”) or by the Judicial Arbitration and Mediation Service (“JAMS”).
You and us agree that the arbitrator has the exclusive authority to resolve all disputes, including what matters are or are not arbitrable (e.g., fraud; incapacity; duty; performance; damages; contract formation; enforceability, validity, void or voidable; construction and interpretation; etc.) without the involvement of any federal, state or local court or agency.
You and us are responsible for paying our respective filing, administrative, and arbitrator fees in accordance with the rules of the arbitration service, provided that if the arbitrator determines that You cannot afford the filing fees and costs of the arbitration, then we shall pay all costs and filing fees associated with the arbitration proceeding. Each party shall bear the expense of their respective attorney fees unless determined otherwise by the arbitrator.
The arbitration will take place in Des Moines, Iowa unless by means phone conference, Skype or other means as determined by the arbitrator or as agreed by You and us.
YOU AGREE THAT THE ARBITRATION ADJUDICATION OF YOUR CLAIM WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS PART OF A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
IF, FOR ANY REASON, A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, THEN YOU AND US EACH WAIVE ANY RIGHT TO A JURY TRIAL AND THE ADJUDICATION OF YOUR CLAIM WILL BE SOLELY BY A JUDGE ON AN INDIVIDUAL BASIS AND NOT AS PART OF A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
YOU AGREE THAT ANY CLAIM YOU HAVE MUST BE SUBMITTED TO ARBITRATION WITHIN ONE (1) YEAR AFTER THE CLAIM ACCRUES OTHERWISE SUCH CLAIM SHALL BE PERMANENTLY BARRED AND UNENFOREABLE.
In the event this Arbitration provision is deemed invalid or unenforceable with respect to a particular claim or dispute, neither You nor we shall be entitled to arbitration of such claim or dispute and instead the claim or dispute shall be resolved through court proceedings and You and us hereby irrevocably consent to and submit to the personal jurisdiction and venue of the state and federal courts located in Des Moines, Polk County, Iowa, for such purpose.
27. Injunctive Relief and Action to Compel or Enforce Arbitration
Notwithstanding Section 26, both You and us has the right to seek court ordered injunctive relief to enforce this TOU agreement or to stop or prevent an infringement or threatened infringement of intellectual or proprietary property rights. You and us hereby irrevocably consent to and submit to the personal jurisdiction and venue of the state and federal courts located in Des Moines, Polk County, Iowa, for such purpose and for the purpose to compel arbitration or to enforce an arbitration award under Section 26.
28.1 Entire Agreement
This TOU agreement constitute the entire agreement between You and us regarding the use of the Site and the subject matter hereof. This TOU agreement supersedes and replaces all prior versions of the same or contemporaneous understandings, whether written or oral, regarding such subject matter.
28.2 Applicable Law
This TOU agreement is governed by and construed in accordance with the laws of the State of Iowa, without giving effect to its conflict-of-law provisions.
We may provide You with notices regarding the Site or this TOU agreement by regular mail, email, or postings on or through the Site.
28.4 No Agency
There is no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between You and The Pet Project or between The Pet Project and any other User of the Site.
28.5 Legal Compliance
You shall comply with all applicable domestic and international laws, statutes, ordinances, regulations, contracts, and applicable licenses regarding Your use of the Site. We make no representation that UGC posted on or through the Site are appropriate or available for use outside the United States, its territories, possessions, and protectorates. If You choose to access the Site from such foreign locations You do so on Your own initiative and at Your own risk. You are responsible for complying with local laws, if and to the extent local laws are applicable. You specifically agree to comply with all applicable laws concerning the transmission of UGC exported to or from the United States or the country from which You reside.
This TOU agreement operates to the fullest extent permissible by applicable law. If any provision of this TOU agreement shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this TOU agreement to the extent they are unlawful, void, or unenforceable and shall not affect the validity and enforceability of any of the remaining portions of that provision or any of the other provisions of this TOU agreement.
You shall not assign this TOU agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without our prior written consent. Any such purported assignment or delegation will be null and void and of no force or effect.
28.8 Assignment by Us
We reserve the right, without Your consent, to freely assign or transfer all or part of our right, title and interest in and to the Site, including Your Pet Profile, UGC, and our other rights arising under this TOU agreement and otherwise, as part of the reorganization of The Pet Project or the sale or merger of The Pet Project to or with another person or entity, or for the purpose of collateralizing debt.
28.9 Force Majeure
Under no circumstances will we or our Board or Staff be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, bad weather, earthquakes, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
Our failure to exercise or enforce any right or provision of this TOU agreement shall not operate as a waiver of any such right or provision. Any waiver of any provision of this TOU agreement by a party will be effective only if in writing and signed by a party to be charged.
The section headings in this TOU agreement are for convenience only and have no legal or contractual effect.
28.12 Contacting The Pet Project
Should You wish to contact us about any matter You may do so by one of the following methods:
The Pet Project Midwest
4944 Franklin Avenue, Suite N
Des Moines, IA 50310