Terms of Use for Managed Advertising Services

Last Updated and Effective Date: January 29th, 2024

These Terms of Use for Managed Advertising Services (“Terms”) apply to your access to and use of the online advertising platform and all associated web pages, websites, social media pages, mobile applications, and other digital properties (“Platform”) and services, including support services, associated with the foregoing (collectively with the Platform, the “Services”), in each case, as owned, operated, or provided by Petco Animal Supplies Stores, Inc. (“Petco”, “we”, “our” or “us”). These Terms are subject to the applicable Insertion Order ("IO") between you and Petco, including the IAB Terms incorporated by reference into the IO. Defined terms used but not defined herein are as defined in the IO.  In the event of a conflict between these Terms and the IO or IAB Terms, the IO or IAB terms, as applicable, will take precedence unless expressly stated otherwise in these Terms.

By entering into the applicable IO, you acknowledge that you have read, understand, and agrees to be bound by these Terms.

PLEASE NOTE: SECTION 9 OF THESE TERMS IS A MANDATORY DISPUTE RESOLUTION SECTION WITH AN ARBITRATION PROVISION, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER THAT AFFECT YOUR RIGHTS. THE MANDATORY DISPUTE RESOLUTION SECTION AFFECTS HOW DISPUTES WITH PETCO ARE RESOLVED. YOU AGREE TO BE BOUND BY THE MANDATORY DISPUTE RESOLUTION SECTION, INCLUDING THE ARBITRATION PROVISION THEREIN. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT. PLEASE READ THESE TERMS CAREFULLY. If you do not agree with these Terms, you should not enter into the IO with Petco.

Petco may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of Petco’s Services (“Supplemental Terms”). Any Supplemental Terms become part of your agreement with Petco if you use the applicable Services, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict.

Petco may make changes to these Terms. The “Last Updated” date above indicates when these Terms were last changed. If we make future changes, Petco may provide you with notice of such changes, such as by sending an email, providing a notice through the Services, or updating the date at the top of these terms. Unless Petco says otherwise in the applicable notice, the amended Terms will be effective immediately, and your continued use of Petco’s Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using Petco’s Services.

  1. Eligibility and Use Restrictions
  1. Authorization. If you use the Services on behalf of the advertiser that signed the IO (the “Advertiser), (a) all references to “you” throughout these Terms (other than in this Section 1.1) will include the Advertiser and (b) in the event you or Advertiser violates these Terms, Advertiser also agrees to be responsible to Petco.
  2. Jurisdiction. You may only use the Services in jurisdictions authorized by Petco. Use of Petco’s Services is currently authorized only in the United States.
  3. Use and Sharing. Petco’s Services are provided to you only for your internal business use and not for the benefit or use of any third party. Petco may enable you to designate authorized individuals (“Authorized Users”) to use Petco’s Services, and only Authorized Users may use Petco’s Services. You will be solely responsible for your Authorized Users and their activity in connection with the Services.
  1. Registration

Authorized Users may be required to create and use Petco-issued accounts (“Account(s)”) to use some or all the Services. You will ensure that your Authorized Users (a) do not share Account credentials, (b) provide accurate account information and promptly update this information if it changes, and (c) use a strong password for their Account that is unique to the Services and not used by that Authorized User in any other website or online service. You will maintain the security of any accounts created by your Authorized Users. If you discover or suspect that someone has accessed the account of one of your Authorized Users without permission, you will promptly notify Petco. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal title, including trademark rights, in those usernames.

  1. Advertising Materials
  1. You are solely responsible for all: (a) Advertising Materials; (b) Ad trafficking or targeting decisions, including keyword selection (“Target(s)”); (c) sites to which Ads direct end users, along with the related URLs and redirects (“Landing Pages”); (d) services and products advertised on Landing Pages; and (e) advertising campaigns set forth in the applicable IO (“Campaigns”).
  2. Except for the license you grant below, as between you and Petco, you retain all rights in and to your Advertising Materials, excluding any portion of the Services included in your Advertising Materials. You grant Petco and its subsidiaries and affiliates a nonexclusive, non-transferrable, revocable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly or otherwise perform, and display your Advertising Materials. You hereby irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding Advertising Materials that you may have under any applicable law or under any legal theory.
  3. You may not submit, post, store, or share any Advertising Materials for which you do not have all the rights necessary to grant Petco the license described above, and you represent and warrant that your Advertising Materials, and Petco’s use of such Advertising Materials as permitted by these Terms, will not violate any rights of any person or entity, including any third party rights, or cause injury to any such person or entity.
  4. Enforcement of this Section 3 is solely at Petco’s discretion, and failure to enforce this article in some instances does not constitute a waiver of Petco’s right to enforce it in other instances. This Section 3 does not create any right or private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by these Terms or that objectionable material will be promptly removed after it has been posted.
  5. Petco does not undertake to review all Advertising Materials, and Petco expressly disclaims any duty or obligation to undertake any monitoring or review of any Advertising Materials. Although Petco has no obligation to screen, edit, or monitor Advertising Materials, Petco may:
  1. delete or remove Advertising Materials or Targets, or refuse to post any Advertising Materials at any time and for any reason with or without notice, including without limitation for any violations of applicable law or these Terms;
  2. terminate or suspend your access to all or part of the Services, temporarily or permanently, if your Advertising Materials are reasonably likely, in our sole determination, to violate applicable law or these Terms;
  3. take any action with respect to your Advertising Materials that is necessary or appropriate, in Petco’s sole discretion, to ensure compliance with applicable law and these Terms, or to protect Company’s rights, or to protect any third party rights, including third party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act takedown requests); and
  4. as permitted by law, cooperate fully with any law enforcement authorities or court order requesting or directing Petco to disclose the identity or other information of anyone posting any Advertising Materials on or through the Services.
  1. Services
  1. The Platform is an online advertising platform on which you authorize Petco to use manual and automated tools to format Ads. Petco may make available certain optional Platform features to assist you with the selection and generation of Targets and Advertising Materials, including offering discounts and free samples. You are not required to use these optional Targeting and Advertising Materials features and may opt-in or opt-out-of usage of these features, but you will be solely responsible for the Targets and Advertising Materials features that you use. You may use the Platform and the Services only in and for your own internal purposes and business operations.
  2. Petco and its licensors own all rights, title, and interest, including all intellectual property rights, in and to (a) the Services and any program or marketing materials provided by Petco to you via the Services, (b) data, content, or other information relating to end user engagement including impressions, clicks, or other desired actions in connection with your access and use of the Services, and (c) any works generated by or through the Services, including deidentified or aggregated data where the resulting data does not constitute personal information under applicable law and cannot reasonably be linked to or associated with an end user and Deliverables, but excluding any third party content (collectively, “Petco Materials”), and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services and Petco Materials, including all intellectual property rights thereto, are reserved by Petco and its licensors.
  3. Subject to your continuing compliance with the terms of the IO: (a) Petco will: (i) provide the Services to you and each Authorized User; and (ii) provide you with administrative access to the Services to manage use of the Services by Authorized Users; and, (b) you and your Authorized Users may, on a non-exclusive basis, (i) access and use the Services and Petco Materials made available by the Services; and (ii) create, store, access, download, and share any Deliverables made available by the Services, in each case, solely for your internal business purposes.
  1. Acceptable Advertising Rules.
  1.  You will not use the Services or the Platform, in a manner that violates the rules set forth in this Section 5 (the “Acceptable Advertising Rules”).
  2. You will not use the Services if you are not eligible to use the Services in accordance with Section 1 and will not use the Services other than for their intended purpose. Further, you will not (and will not authorize any third party to), in connection with the Services:
  1. generate impressions, inquiries, or end user interactions, including actions taken across any device or environment to initiate a redirect to the details page of an Ad, or actions to find out more information about the subject of the Ad, or actions to put the product the subject of the Ad into the user’s digital shopping cart (“Click(s)”) in an automated, fraudulent, or otherwise invalid manner;
  2. violate any applicable law, contract, intellectual property right, or other third party right or commit a tort;
  3. engage in any harassing, threatening, intimidating, predatory, or stalking conduct;
  4. use or attempt to use another user’s account or information without authorization from that user and Petco;
  5. Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;
  6. modify the Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon the Services;
  7. use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other advertisers or users from fully enjoying our Services or that could damage, disable, overburden, or impair the functioning of our Services in any manner;
  8. reverse engineer any aspect of the Services or do anything that might discover or reveal source code, or bypass or circumvent measures employed to prevent or limit access to any part of the Services;
  9. use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Services or collect advertising related information from any Platform except as expressly permitted and instructed by Petco;
  10. develop or use any applications or software that interact with the Services without our prior written consent;
  11. send, distribute, or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
  12. link to any online portion of the Services in a manner that damages or exploits, in Petco’s sole discretion, Petco’s reputation or suggests any form or association, approval, or endorsement by the Petco; or
  13. use the Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.
  1. You will not submit, post, store, or upload any Ad or Advertising Materials that:
  1. are unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, violent, inflammatory, or fraudulent;
  2. targets, appeals to, or otherwise collects any type of information from children;
  3. depicts any person in a dangerous or life-threatening situation;
  4. advocates for any particular political candidate, party, agenda, religion, faith, or social movement;
  5. promotes physical or mental harm to users or others;
  6. depicts or encourages the use of alcohol, gambling, weapons, tobacco, or illegal drugs;
  7. contains gross, tasteless, crude, insensitive, or otherwise shocking material;
  8. would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability, or violate any local, state, national, or international law;
  9. may infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;
  10. impersonates, or misrepresents your affiliation with, any person or entity;
  11. contains any private or personal information of a third party without such third party’s consent;
  12. contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content; or
  13. otherwise violates standards of good conduct and decency, as determined by Petco in its sole discretion.
  1. Enforcement of this Section 5 is solely at Petco’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. You may not use the Platform or the Services as a service for any third party. No license or right to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease, sublicense or otherwise distribute, transfer, or dispose of the Platform or the Services accessed by you hereunder, in whole or in part, is granted except as expressly provided by these Terms.
  1. Cancellation/Termination
  1. Modifying and Terminating Services. Petco reserves the right to modify or suspend the Services in accordance with these Terms or to suspend or terminate the IO in accordance with the IAB Terms; charge, modify, or waive any fees required to use the Services; or offer opportunities to some or all advertisers or users of the Services. Petco may, at any time and for any reason immediately reject or remove any portion of an Ad, or Advertising Materials, any content of any campaign under a Campaign from the Platform, or any Target options made available by Petco. Petco may provide you with notice in advance of the suspension or discontinuation of all or part of the Services, such as by sending an email or providing a notice through the Services. All modifications and additions to the Services will be governed by these Terms or Supplemental Terms, unless otherwise expressly stated by Petco in writing. You also have the right to stop using our Services at any time, and you may terminate these Terms by ceasing use of our Services, and Petco may also suspend or terminate any Campaign, or your access to the Platform or the Services by giving you written notice of termination, subject to the IAB Terms and these Terms. We are not responsible for any loss or harm related to your inability to access or use our Services.
  2. Effects of Termination. Upon termination of these Terms, the Services and all of your rights under these Terms will immediately terminate. For cancellation of Advertiser’s access to the Platform by either party for any reason, Advertiser must cease to use the Platform and the Services.
  1. Survival. Termination will not relieve either Party of obligations incurred prior to the effective date of the termination. The following Sections survive the termination or expiration of these Terms: 4.2, 5, 6.2, 7, 8, 9, 10, 11, 12, and 13.
  2. Destruction of Confidential Information; Removal of Ads. At Petco’s request or expiration or early termination of the IO, you will promptly return or destroy Petco’s Confidential Information upon written request.  If requested, you will certify in a writing signed by an authorized officer as to the return or destruction of all such Confidential Information. At the expiration or early termination of the IO, you provide all necessary assistance requested by Petco to remove Advertising Materials and Ad tags upon termination.
  1. Warranties and Disclaimer
  1. Advertiser Warranties. You represent, covenant, and warrant to Petco that (a) you will use the Platform and the Services only in compliance with these Terms and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, and defamation); (b) you will not use the Services for any unlawful or discriminatory activities; (c) you own, or are otherwise authorized to use and permit Petco to use and exploit all intellectual property rights in the Advertising Materials as contemplated in these Terms; (d) that your advertising claims for products used in connection with these Terms are not false or misleading; (e) you have in your possession adequate and sufficient data to establish the truthfulness of any and all advertising and labeling claims and that past usage of the same or similar claims has occurred without, to your knowledge, any objections by the Federal Trade Commission, Food and Drug Association, or any other local, state or federal government agency; (f) the content and Advertising Materials you deliver pursuant to these Terms do not and will not (i) infringe upon any third party intellectual property or proprietary right, (ii) violate the Acceptable Advertising Rules; and (g) you will not introduce any viruses, malware, or any other harmful code into the Platform. Advertiser will at all times comply with federal, state, and local laws, ordinances, regulations, and codes which are applicable to its performance of its obligations under these Terms, including truth in advertising and other marketing or advertising laws or FTC guidance.
  2. Petco Warranties. Petco represents and warrants that it has all necessary permits, licenses, and clearances to provide the Platform and perform the Services set forth in these Terms. Petco will at all times comply with federal, state, and local laws, ordinances, regulations, and codes which are applicable to its performance of its obligations under these Terms, including truth in advertising and other marketing or advertising laws or FTC guidance.
  3. Warranty Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THESE TERMS (OR OTHERWISE REQUIRED BY APPLICABLE LAW WITHOUT POSSIBILITY OF CONTRACTUAL WAIVER): PETCO HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE; AND THE PLATFORM, THE SERVICES, REPORTS, PETCO MATERIALS AND ANY OTHER INFORMATION IS PROVIDED BY PETCO ON AN “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OR CONDITION OF ANY KIND. YOU REPRESENT AND COVENANT THAT YOU HAVE NOT RELIED ON ANY OTHER WARRANTIES OR REPRESENTATIONS CONCERNING PETCO, THE PLATFORM, THE SERVICES, DELIVERABLES, OR THE PETCO MATERIALS.
  1. Indemnification

In addition to the indemnities set forth in the IAB Terms, you agree to indemnify, hold harmless and defend Petco and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents, business partners and licensors at your expense, against any and all third party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by Petco arising out of or relating to your (a) violation or breach of any term of these Terms, including without limitation, any breach of your representations, covenants and warranties given under Section 7.1; (b) your negligence or intentional misconduct; or (c) use or misuse of the Services by or on behalf of you. Petco reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not, in any event, settle any matter without the prior written consent of Petco.

  1. Mandatory Dispute Resolution (including Arbitration, Class Action Waiver, & Jury Trial Waiver)

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR A MANDATORY EARLY RESOLUTION PROCESS, BINDING ARBITRATION, A CLASS ACTION WAIVER, AND A JURY TRIAL WAIVER. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION ARE INTENDED TO REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING THEIR DISPUTES AND ARE NOT INTENDED TO DELAY ADJUDICATION OF ANY PARTY'S CLAIMS.

  1. Disputes. Any dispute or claim arising out of or relating to these Terms, your use of the Services, or your relationship with Petco or any past, present, or future subsidiaries, parents, affiliates, employees, officers, directors, agents, successors, representatives, or assigns, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory (each a “Dispute”) will be resolved through binding individual arbitration as set forth in these Terms, except that either you or Petco may initiate a Dispute in or take a Dispute to small claims court, so long as that Dispute is not removed or appealed to a court of general jurisdiction. Whether a Dispute falls within the jurisdiction of small claims court is for a small claims court to decide in the first instance and for a court of competent jurisdiction to otherwise decide. The term “Dispute” shall be interpreted broadly and includes, but is not be limited to: (a) any dispute or claim that arose before the existence of these or any prior Terms (including, but not limited to, claims relating to advertising); (b) any dispute or claim that is currently the subject of purported class action litigation in which you are not a member of a certified class; and (c) any dispute or claim that may arise after termination of these Terms.  “Dispute,” however, does not include disagreements or claims concerning patents, copyrights, trademarks, trade secrets, or other intellectual property, and claims of piracy or unauthorized use of intellectual property. In any Dispute, the arbitrator shall decide all issues except the following (which are for a court of competent jurisdiction to decide): (a) issues that are reserved for a court in these Terms; (b) issues that relate to the scope, validity, and/or enforceability of the arbitration provision, class action waiver, or any of the provisions of this Mandatory Dispute Resolution clause; and (c) issues that relate to the arbitrability of any Dispute. These Terms and their arbitration provision do not prevent you from bringing a Dispute to the attention of any government agency. You and we agree that these Terms evidence a transaction in interstate commerce and that the arbitration provision herein will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law.
  2. Early Resolution Process.  You and Petco agree to work together in a good-faith effort to informally resolve any Dispute that might arise between us using the early resolution process described herein (“Early Resolution Process”). The party initiating a Dispute must first send the other a written notice (the “Dispute Notice”) that includes all of the following information: (a) information sufficient to identify any transaction and/or account at issue in the Dispute; (b) contact information (including your name, address, telephone number, and email address); and (c) a detailed description of the nature and basis of the Dispute and the relief sought, including a calculation for such relief. The Dispute Notice must be personally signed by the party initiating the Dispute (and their counsel, if represented). If you are the party initiating a Dispute, you must send us the Dispute Notice via email to arbitration@petco.com. If Petco has a Dispute with you, we will send a Dispute Notice to you at the most recent contact information we have on file for you. For a period of sixty (60) days from receipt of a completed Dispute Notice (which can be extended by agreement of the parties), you and we agree to negotiate in good faith in an effort to informally resolve the Dispute. The party receiving the Dispute Notice may request a telephone settlement conference to aid in the early resolution of the Dispute. If such a conference is requested, you and a Petco representative will personally attend such a telephone settlement conference (with counsel, if represented). The conference will be scheduled for a mutually convenient time, which may be outside of the 60-day period following receipt of a Dispute Notice.  This informal Early Resolution Process is a condition precedent to you or Petco commencing a formal proceeding in arbitration or small claims court. If the sufficiency of a Dispute Notice or compliance with this Early Resolution Process is at issue, such issue may be raised with and decided by a court of competent jurisdiction at either party’s election and any arbitration shall be stayed pending resolution of such issue. The court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of arbitrations, and to enjoin the assessment or collection of arbitration fees. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with this process in arbitration or to raise non-compliance with a AAA process arbitrator. All applicable limitations periods (including statutes of limitations) will be tolled from the date of receipt of a completed Dispute Notice through the conclusion of this Early Resolution Process. You or we may commence arbitration or a small claims court proceeding if a Dispute is not resolved through this Early Resolution Process.
  3. Arbitration Procedures.  The arbitration of any Dispute shall be conducted in accordance with the rules of the American Arbitration Association (“AAA”), including the AAA’s Consumer Arbitration Rules and Supplementary Rules for Mass Arbitration, as applicable (“AAA Rules”), as modified by this arbitration provision and these Terms. The AAA Rules are available online at www.adr.org. You and we understand and agree that the AAA’s administrative determination that this arbitration provision comports with the Consumer Due Process Protocol is final, and that neither a court nor an arbitrator has the authority to revisit it.  If the AAA is unavailable or unwilling to conduct the arbitration consistent with this arbitration provision and these Terms, the parties shall agree on a replacement arbitration administrator that will do so. If the parties cannot agree on a replacement arbitration administrator, they shall petition a court of competent jurisdiction to appoint an arbitration administrator that will conduct the arbitration consistent with this arbitration provision and these Terms.  An arbitration demand must (a) include all of the information required to be provided in the Dispute Notice above; (b) be accompanied by a certification of compliance with the Early Resolution Process above; and (c) be personally signed by the party initiating arbitration (and counsel, if represented). When initiating arbitration, you shall personally certify to Petco and to AAA that you are a party to this arbitration provision and provide a copy or link to it. By submitting an arbitration demand, the initiating party and counsel represent, as in court, that they are complying with the requirements of Federal Rule of Civil Procedure 11(b). The arbitrator is authorized to impose any sanctions available under Federal Rule of Civil Procedure 11 on represented parties and their counsel. You may choose to have the arbitration conducted by a phone, video, or in-person hearing, or through written submissions, except any Dispute seeking more than Ten Thousand Dollars ($10,000.00 USD) or injunctive relief shall have an in-person or video hearing unless the parties agree otherwise. You and we reserve the right to request a hearing in any matter from the arbitrator. You and a Petco representative will personally appear at any hearing (with counsel, if represented). Any in-person hearing will be held in the county or parish in which you reside or at another mutually agreed-upon location. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the fullest extent allowable by applicable law, you and we agree that each may bring claims against the other only in your or our individual capacity and not as a plaintiff or class member in any purported class, collective, consolidated, private attorney general, or representative proceeding. Further, unless both you and we agree otherwise, an arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of class, collective, consolidated, private attorney general, or representative proceeding. You agree that you shall personally participate, along with your counsel if represented, in the initial conference with the arbitrator unless the parties agree otherwise. An arbitrator must follow and enforce these Terms as a court would.  IF, AFTER EXHAUSTION OF ALL APPEALS, ANY OF THESE PROHIBITIONS ON NON-INDIVIDUALIZED INJUNCTIVE OR DECLARATORY RELIEF AND CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE PROCEEDINGS ARE FOUND TO BE UNENFORCEABLE WITH RESPECT TO A PARTICULAR CLAIM OR REQUEST FOR RELIEF (SUCH AS A REQUEST FOR PUBLIC INJUNCTIVE RELIEF), THEN SUCH A CLAIM OR REQUEST FOR RELIEF WILL BE DECIDED BY A COURT OF COMPETENT JURISDICTION, AFTER ALL OTHER CLAIMS AND REQUESTS FOR RELIEF ARE ARBITRATED.  The arbitrator shall issue a reasoned written decision sufficient to explain essential findings and conclusions. The arbitrator shall apply the cost-shifting provisions of Federal Rule of Civil Procedure 68 after entry of an award. Judgment on any arbitration award may be entered in any court of competent jurisdiction, except an award that has been satisfied may not be entered. An award shall have no preclusive effect in any other arbitration or proceeding in which you are not a named party.  Payment of arbitration fees will be governed by the AAA Rules and fee schedule. You and we agree that the parties have a shared interest in reducing the costs and increasing the efficiencies associated with arbitration. Therefore, you or we may elect to engage with the AAA regarding arbitration fees, and you and we agree that the parties (and counsel, if represented) will work together in good faith to ensure that arbitration remains cost-effective for all parties.
  4. Additional Procedures for Mass Arbitration.  You and we agree that the following “Additional Procedures for Mass Arbitration” (in addition to the other provisions of this arbitration provision) shall apply if you choose to participate in a Mass Arbitration (as defined below). If twenty-five (25) or more similar Disputes (including yours) are asserted against Petco by the same or coordinated counsel or are otherwise coordinated (a “Mass Arbitration”), you understand and agree that the resolution of your Dispute might be delayed and ultimately proceed in court. The parties agree that as part of these procedures, their counsel shall meet and confer in good faith in an effort to resolve the Disputes, streamline procedures, address the exchange of information, modify the number of Disputes to be adjudicated, and conserve the parties’ and the AAA’s resources. If your claim is part of a Mass Arbitration, any applicable limitations periods (including statutes of limitations) shall be tolled for your Dispute from the time that your Dispute is first submitted to the AAA until your Dispute is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration pursuant to this provision.  A court of competent jurisdiction shall have the authority to enforce these Additional Procedures for Mass Arbitration, including the power to enjoin the filing or prosecution of arbitrations and the assessment or collection of arbitration fees. These Additional Procedures for Mass Arbitration are essential parts of this arbitration provision.  If, after exhaustion of all appeals, a court of competent jurisdiction decides that these Additional Procedures for Mass Arbitration apply to your Dispute and are not enforceable, then your Dispute shall not proceed in arbitration and shall only proceed in a court of competent jurisdiction consistent with the remainder of these Terms.

  1. Opting Out of the Arbitration Provision.  Petco’s updates to these Terms do not provide you with a new opportunity to opt out of arbitration if you previously agreed to and did not validly opt out of arbitration. Petco will continue to honor any valid opt outs if you previously opted out of arbitration with Petco.  To opt out of arbitration, you must send a personally signed, written notice via U.S. Mail to Petco at: Petco Legal Department, 10850 Via Frontera, San Diego CA 92127, or via email to arbitration@petco.com, and you must provide the following information: (a) your name, (b) your address, (c) your phone number, and (d) a clear statement that you wish to opt out of this arbitration provision. This opt-out notice must be sent within thirty (30) days after the date you first become subject to this arbitration provision. If you opt out of this agreement to arbitrate, all other provisions of these Terms, including other provisions of the Mandatory Dispute Resolution section, will continue to apply to you. Opting out has no effect on any other arbitration agreements or provisions that you may have entered into with Petco or may enter into in the future with Petco.

  1. Future Changes to the Arbitration Provision.  If Petco makes any future changes to the arbitration provision (other than a change to our contact information), you may reject any such change by sending your personally signed, written notice to the following address within thirty (30) days of the change: Via U.S. Mail to Petco at: Petco Legal Department, 10850 Via Frontera, San Diego CA 92127; or via email to arbitration@petco.com. Such written notice does not constitute an opt out of arbitration altogether or impact any other portions of this Mandatory Dispute Resolution section.  By rejecting any future change, you are agreeing that you will arbitrate any Dispute between you and Petco in accordance with this version of the arbitration provision.
  2. Class Action Waiver; Jury Trial Waiver.  YOU AND WE EACH AGREE THAT ANY PROCEEDING, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION. YOU AND WE AGREE TO WAIVE ANY RIGHT TO BRING OR TO PARTICIPATE IN SUCH AN ACTION IN ARBITRATION OR IN COURT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.  NOTWITHSTANDING THE FOREGOING, THE PARTIES RETAIN THE RIGHT TO PARTICIPATE IN A CLASS-WIDE SETTLEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND PETCO WAIVE THE RIGHT TO A JURY TRIAL.

  1. Severability. If any portion of this Section 9 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 9 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 9; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction, in accordance with these Terms, and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 9 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 9 will be enforceable.
  2. Notwithstanding anything to the contrary in the Terms, if you reside in any country outside of the United States, you may bring legal proceedings regarding the Terms either by following the arbitration procedure detailed above in this Section 9 of the Terms or, if given the right by applicable law, by submitting the dispute to an arbitration administrator in the jurisdiction in which you reside. To the extent any proceeding is not subject to arbitration under applicable law, you may submit the dispute to the courts of the jurisdiction in which you reside.

  1. Privacy

Our Privacy Policy applies to use of the Services and its terms are made a part of these Terms by reference. The Privacy Policy can be viewed on advertising.petco.com.

  1. Governing Law

Notwithstanding anything to the contrary in the IO or IAB Terms, any dispute arising from these Terms or your use of the Services will be governed by and construed and enforced in accordance with the laws of the State of California, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration will be resolved in the state or federal courts in the County of San Diego, California.

  1. Export Control

You are responsible for compliance with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant, and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.

  1. General
  1. Miscellaneous. Petco’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. Nothing in these Terms will constitute a partnership, agency, or joint venture between you and Petco. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. If any provision of these Terms is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability will attach only to that provision or part and the rest of such provision, and all other provisions of these Terms will continue in full force and effect. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You may not assign these Terms or rights hereunder. Petco may assign these Terms at Petco’s discretion, without consent of or notification to you.
  2. Severability. If any portion of these Terms other than Section 9 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.
  3. Notice. Communications and transactions between us may be conducted electronically. If you have a question or complaint regarding the Services, please send an email to law@petco.com. You may also contact us by writing to Petco Legal Department, 10850 Via Frontera, San Diego, CA 92127. Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in your email correspondence with us.
  4. Equitable Remedies. You hereby agree that Petco would be irreparably damaged if these Terms were not specifically enforced, and therefore you agree that Petco shall be entitled to appropriate equitable remedies in any court of competent jurisdiction with respect to breaches of these Terms, in addition to such other remedies as Petco may otherwise have available to it under applicable laws.