Terms of Service
Terms of Service
Welcome to http://brainypup.com. The http://brainypup.com website (the "Website") is comprised of various web pages operated by Brainy Pup LLC. http://brainypup.com is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein (the "Terms"). These Terms are a legal agreement between you (“You”, “Your”, “User”) and Brainy Pup LLC (hereafter referred to as "Brainy Pup", “http://brainypup.com”, "we", "us", or "our"), establishing terms and conditions under which You will submit information to, and rent dog toys and dog treats (each a "Product" and collectively, "Products") and receive related services ("Services") from, Brainy Pup via the Website. Your use of the Website constitutes your agreement to all such Terms. Please read these Terms carefully, and keep a copy of them for your reference.
Visiting http://brainypup.com or sending emails to Brainy Pup LLC constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communications be in writing.
If you use this site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You may not assign or otherwise transfer your account to any other person or entity. You acknowledge that Brainy Pup LLC is not responsible for third party access to your account that results from theft or misappropriation of your account. Brainy Pup LLC and its associates reserve the right to refuse or cancel service, terminate accounts, or remove or edit content in our sole discretion.
Children Under Thirteen
Brainy Pup LLC does not knowingly collect, either online or offline, personal information from persons under the age of thirteen. If you are under 18, you may use http://brainypup.com only with permission of a parent or guardian.
Billing and Payments
By purchasing a subscription plan (“Subscription Plan”) and providing or designating a payment method, You authorize us to charge You on a recurring monthly subscription fee at the then current rate. We reserve the right to adjust Subscription Plan pricing in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in these Terms of Service, any price changes to your subscription will take effect following email notice to you providing you an opportunity to cancel the service if you wish that the price change would not be applicable to you.
Cancellation; Refund Policy
If You are subscribed to a subscription plan (“Subscription Plan”), You authorize us to continue Your Subscription Plan automatically until the end of the subscription duration period (1 month for Monthly Pass, 3 months for Season Pass, 12 months for Annual Pass), charged at the specified intervals to the payment method You provided. After the initial subscription period, you may cancel your Brainy Pup Subscription Plan via email anytime. We do not issue refunds or partial refunds. Once a payment is successfully submitted, it may not be cancelled or refunded. Upon cancellation, You must return any rented Products within 10 days. If the Products are not returned within 10 days, You will be charged the market price of the Products. The charge may not be reversed even if Products are sent back at a later date.
All missing or damaged Products must be reported to Brainy Pup via email within 5 days of the shipment being delivered to You, and must include photo documentation in the email submission. Missing shipments must be reported within 10 days of the shipment date. Damaged items will be reviewed by Brainy Pup’s support agent and, if applicable, a replacement or a site credit will be issued. All replacements will be at the discretion of customer support.
As part of a Subscription Plan, we may issue You credits redeemable for toy rentals ("Toy Credits"). Toy Credits may only be redeemed for available toys from Brainy Pup, have no cash value, are non-transferrable and non-refundable. All Toy Credits are valid for 2 years, and expire immediately upon the termination of your Subscription Plan. Toy Credits issued as part of a promotion expire in accordance with the applicable promotional terms.
Brainy Pup ensures that Products departing from its fulfillment center are in a clean condition, yet we cannot guarantee the Product condition following the shipping process. Brainy Pup shall use good faith efforts to deliver the Products to the designated address specified by You. Title to the Products passes from Brainy Pup to you upon shipment from our facility (or, if applicable, the third party manufacturer’s facility). Our shipping service does not include the redirecting or forwarding to an updated address. Products may appear different in color and style than the photos displayed on our Website.
Receipt of the Product
You acknowledge that a Secure Delivery Address (defined herein) is highly recommended. A Secure Delivery Address is defined as a location where an individual can physically receive Products. In the event that an unsecure delivery address is provided, Brainy Pup does not bear liability for Products left unattended. Furthermore, You acknowledge that providing anything other than a Secure Delivery Address may result in delivery delays and additional delivery fees for which Brainy Pup is not to be held liable, but You will be held liable.
Use of the Products
You will treat the Products with care and respect as if they were Your own toy. You are responsible for full loss, partial loss, destruction or damage to the Products due to any cause, other than normal wear. Normal wear encompasses minor scratches, indentations, and discoloration. If You return a Product that is damaged beyond normal wear, then You agree that we shall charge You, and You shall pay, for the price for repairing or replacing the Product, as determined in our discretion, up to the retail value for the Product. You will exercise caution and use your independent judgment before providing our Product to any pet or any person. You are solely responsible for making decisions that are in the best interests of You and Your pets. For example, You are responsible for keeping current your own pet’s vaccinations, and we will have no liability for anyone’s failure to vaccinate his or her pet.
Return of the Products
With delivery of the Product, we will provide You with a pre-paid, pre-addressed shipping label as well as instructions for Your use in returning the Products to Brainy Pup ("Return Packaging"). If You lose the Return Packaging, You will be responsible for returning the item at your own expense by the expected return date, and providing Brainy Pup with a tracking number. You agree that you will return the Products in a clean and sanitary condition.
You must return the Product by delivering the Product in the Return Packaging to a USPS store located in the United States by 12 p.m. on or before the date that the Product is due. We are not responsible for any personal or other items left in the Products or which are returned to Brainy Pup in the Return Packaging. If you believe you have accidentally or otherwise sent us any such items, please contact customer service as soon as possible at firstname.lastname@example.org. Our staff may assist in attempting to locate such items at a customer’s request, but are not obligated to and assume no liability for doing so.
If you return the Products late or not at all, a late fee of fifty dollars ($50.00) will be charged to the payment card you used to pay the Pass or to any other payment card included in your account information that you have provided to RTR for every day that you are late returning the Products, and you agree to pay such late fees, up to an amount not to exceed 100% of the market rate of Product plus applicable sales tax.
Promotional Trial Memberships
Brainy Pup sometimes offers certain customers various trial or other promotional subscriptions, which are subject to the Terms except as otherwise stated in the promotional offers. Trial members may, at any time, choose not to continue to join a paid membership by cancelling prior to the end of the trial period. If a trial offer or a promotion requires you to have a valid payment instrument on file, such as a credit card or other permitted payment method, we may validate that payment method including by requesting a temporary authorization from the financial institution issuing your payment instrument. If we determine that your payment method is invalid, without limiting any of our other rights, we may revoke any membership benefits or Credits you may have received as part of the offer.
Links to Third Party Sites/Third Party Services
http://brainypup.com may contain links to other websites ("Linked Sites"). The Linked Sites are not under the control of Brainy Pup LLC and Brainy Pup LLC is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. Brainy Pup LLC is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Brainy Pup LLC of the site or any association with its operators.
Certain services made available via http://brainypup.com are delivered by third party sites and organizations. By using any product, service or functionality originating from the http://brainypup.com domain, you hereby acknowledge and consent that Brainy Pup LLC may share such information and data with any third party with whom Brainy Pup LLC has a contractual relationship to provide the requested product, service or functionality on behalf of http://brainypup.com users and customers.
No Unlawful or Prohibited Use/Intellectual Property
All content included as part of the Service, such as text, graphics, logos, images, as well as the compilation thereof, and any software used on the Site, is the property of Brainy Pup LLC or its suppliers and protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.
You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, found on the Site. Brainy Pup LLC content is not for resale. Your use of the Site does not entitle you to make any unauthorized use of any protected content, and in particular you will not delete or alter any proprietary rights or attribution notices in any content. You will use protected content solely for your personal use, and will make no other use of the content without the express written permission of Brainy Pup LLC and the copyright owner. You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to the intellectual property of Brainy Pup LLC or our licensors except as expressly authorized by these Terms.
Use of Communication Services
The Site may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, "Communication Services"). You agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service.
By way of example, and not as a limitation, you agree that when using a Communication Service, you will not: defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information; upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents; upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer; advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages; conduct or forward surveys, contests, pyramid schemes or chain letters; download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner; falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded; restrict or inhibit any other user from using and enjoying the Communication Services; violate any code of conduct or other guidelines which may be applicable for any particular Communication Service; harvest or otherwise collect information about others, including e-mail addresses, without their consent; violate any applicable laws or regulations.
Brainy Pup LLC has no obligation to monitor the Communication Services. However, Brainy Pup LLC reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. Brainy Pup LLC reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.
Brainy Pup LLC reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Brainy Pup LLC's sole discretion.
Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. Brainy Pup LLC does not control or endorse the content, messages or information found in any Communication Service and, therefore, Brainy Pup LLC specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized Brainy Pup LLC spokespersons, and their views do not necessarily reflect those of Brainy Pup LLC.
Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you upload the materials.
Materials Provided to http://brainypup.com or Posted on Any Brainy Pup LLC Web Page
Brainy Pup LLC does not claim ownership of the materials you provide to http://brainypup.com (including feedback and suggestions) or post, upload, input or submit to any Brainy Pup LLC Site or our associated services (collectively "Submissions"). However, by posting, uploading, inputting, providing or submitting your Submission you are granting Brainy Pup LLC, our affiliated companies and necessary sublicensees permission to use your Submission in connection with the operation of their Internet businesses including, without limitation, the rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; and to publish your name in connection with your Submission.
No compensation will be paid with respect to the use of your Submission, as provided herein. Brainy Pup LLC is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in Brainy Pup LLC's sole discretion.
By posting, uploading, inputting, providing or submitting your Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.
The Service is controlled, operated and administered by Brainy Pup LLC from our offices within the USA. If you access the Service from a location outside the USA, you are responsible for compliance with all local laws. You agree that you will not use the Brainy Pup LLC Content accessed through http://brainypup.com in any country or in any manner prohibited by any applicable laws, restrictions or regulations.
You agree to indemnify, defend and hold harmless Brainy Pup LLC, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorney's fees) relating to or arising out of your use of or inability to use the Site or services, any user postings made by you, your violation of any terms of this Agreement or your violation of any rights of a third party, or your violation of any applicable laws, rules or regulations. Brainy Pup LLC reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Brainy Pup LLC in asserting any available defenses.
In the event the parties are not able to resolve any dispute between them arising out of or concerning these Terms and Conditions, or any provisions hereof, whether in contract, tort, or otherwise at law or in equity for damages or any other relief, then such dispute shall be resolved only by final and binding arbitration pursuant to the Federal Arbitration Act, conducted by a single neutral arbitrator and administered by the American Arbitration Association, or a similar arbitration service selected by the parties, in a location mutually agreed upon by the parties. The arbitrator's award shall be final, and judgment may be entered upon it in any court having jurisdiction. In the event that any legal or equitable action, proceeding or arbitration arises out of or concerns these Terms and Conditions, the prevailing party shall be entitled to recover its costs and reasonable attorney's fees. The parties agree to arbitrate all disputes and claims in regards to these Terms and Conditions or any disputes arising as a result of these Terms and Conditions, whether directly or indirectly, including Tort claims that are a result of these Terms and Conditions. The parties agree that the Federal Arbitration Act governs the interpretation and enforcement of this provision. The entire dispute, including the scope and enforceability of this arbitration provision shall be determined by the Arbitrator. This arbitration provision shall survive the termination of these Terms and Conditions.
Class Action Waiver
Any arbitration under these Terms and Conditions will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both you and Brainy Pup LLC agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. BRAINY PUP LLC AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME.
BRAINY PUP LLC AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. BRAINY PUP LLC AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Brainy Pup LLC reserves the right, in its sole discretion, to terminate your access to the Site and the related services or any portion thereof at any time, without notice. To the maximum extent permitted by law, this agreement is governed by the laws of the State of California and you hereby consent to the exclusive jurisdiction and venue of courts in California in all disputes arising out of or relating to the use of the Site. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Brainy Pup LLC as a result of this agreement or use of the Site. Brainy Pup LLC's performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Brainy Pup LLC's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by Brainy Pup LLC with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and Brainy Pup LLC with respect to the Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Brainy Pup LLC with respect to the Site. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be written in English.
Changes to Terms
Brainy Pup LLC reserves the right, in its sole discretion, to change the Terms under which http://brainypup.com is offered. The most current version of the Terms will supersede all previous versions. Brainy Pup LLC encourages you to periodically review the Terms to stay informed of our updates.
Brainy Pup LLC welcomes your questions or comments regarding the Terms:
Effective as of August 20, 2019