Swiss Farms Products, Inc. (“BarkYard”) offers products for your pet, home, and garden, including certain products delivered to your residence on a subscription basis (collectively, the “Products”). These terms of sale (the “Terms of Sale”) apply to all Products offered by BarkYard. You agree to these Terms of Sale by purchasing a Product.
PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS WITH RESPECT TO THE PURCHASE OF THE PRODUCTS. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT ORDER OR KEEP YOUR PRODUCT.
1. BarkYard provides (a) a website – http://www.GetBarkYard.com (the “Site”), (b) certain applications accessible through the Site, including certain applications accessible through a user account (collectively, the “Web Apps”), and (c) certain services features accessible through the Site and Web Apps (collectively, the “Features”), all the foregoing for use in conjunction with the Products (collectively, the “Product Services”).
2. In addition to these Terms of Sale, the use of the Products and the Product Services are also subject to the following other terms: (ii) access to and use of the Site is also subject to the Conditions of Use posted on the Site (the “Site Terms”); and (iii) the Products and the Product Services may be subject to additional guidelines, terms, conditions, rules, notices, policies, or statements that may be posted by BarkYard on the Site, or through the Web Apps or other part of the Product Services, from time to time (the “Supplemental Terms”). BarkYard collects and uses your information as described in its privacy notice as posted on the Site (the “Privacy Notice”). You may obtain physical copies of the foregoing terms by accessing the Site or by calling BarkYard toll free at 1-855-377-7292 or writing BarkYard at: Swiss Farms Products, Inc. (GetBarkYard.com), 3993 Howard Hughes Pky, Suite 250 | Las Vegas, NV 89169-6754, Attn: Consumer Services.
3. Subscription Terms. Where applicable, you are given the option of subscribing to the Products whereby you agree to receive a subscription for the receipt of a Product periodically throughout the year as described on the Site (known as the “Product Subscription”). By selecting the Product Subscription, you are considered a subscriber of the Product Subscription, and you agree to the recurring payment of the then-current price of the Product included in the Product Subscription plus applicable tax. The Product Subscription includes shipments on a frequency described in the Product Subscription. BarkYard may change the frequency of shipments or price of the Product upon notice to you by sending an email to the address provided to us when you create an account through the Product Services. Any change in frequency and price shall apply to the next scheduled shipment unless you cancel your Product Subscription. Once you subscribe, BarkYard will process the subscription fee for the first shipment as described in the Product Subscription and on an ongoing basis as described in the Product Subscription until your subscription is cancelled, without further notice to you or authorization from you (“Subscription Payment”). You will be notified by email at the email address you provide to us three (3) days prior to each Subscription Payment being charged. The failure to make a Subscription Payment by the corresponding billing date will result in the Product not being shipped to you and may also result in your removal from the Product Subscription. Your Product Subscription will automatically renew and you will continue to receive Product shipments either - as described in the Product Subscription, or as outlined in your BarkYard account, unless, in each case, you cancel your Product Subscription or skip the Product Subscription shipment prior to the date provided in our recurring notice. You can manage your Product Subscription on the Site by accessing your account. BarkYard may cancel your Product Subscription at any time for any reason with or without notice to you.
4. Orders. To purchase Products you are required to provide information regarding your credit card or other authorized payment instrument. BarkYard reserves all right, at its sole discretion, to determine what form of payment it will accept. After placing an order on the Site, you will receive an email message from acknowledging that BarkYard has received your order. This acknowledgment email does not mean that your order has been accepted by BarkYard. Your submitted and acknowledged order constitutes an offer to BarkYard to buy a Product. All orders are subject to acceptance by BarkYard, and BarkYard will confirm such acceptance to you by email that confirms that the Product has been dispatched (“Confirmation”). BarkYard is not obligated to supply any Product that may have been part of your order until the dispatch of such Products has been confirmed in a separate Confirmation. BarkYard may cancel your order at any time, but shall refund any amount paid for the Products subject to cancellation.
You may use all major credit cards or debit cards for payment for Products. Payments shall be processed through the Site in accordance with the payment information you submit on the Site. BarkYard reserves the right to withhold payment or charge back to your account any amounts otherwise due to BarkYard, or amounts due to any failure to pay or other breach of these Terms of Sale by you, pending BarkYard reasonable investigation of such breach. To ensure proper payment and delivery of the Products, you are solely responsible for providing and maintaining accurate contact and payment information associated with your account. All information that you provide in connection with a purchase from BarkYard or other transaction with the Site must be accurate, complete, and current. You agree to pay all applicable taxes or charges imposed by any government entity in connection with any purchase from BarkYard. The price of a Product as shown on the Site does not include any applicable taxes or shipping. The total price of your order will be reflected on the final checkout page.
6. You must notify BarkYard of any disputes regarding the Product or delivery in writing via email or in writing within thirty (30) days of receiving the Product shipment in dispute. Failure to notify BarkYard shall result in the waiver by you of any claim relating to such disputed payment or Product shipment. By accessing the Site and agreeing to these Terms of Sale, you expressly waive the right to request a chargeback from your credit card company, and acknowledge that your sole recourse for any disputes is through the dispute resolution procedures noted herein.
7. Unless otherwise provided in the Product Subscription, you may avoid the charge of your Subscription Fee, you need to cancel your Product Subscription three (3) days prior to the date the Subscription Fee will be charged. Unless otherwise provided in the Product Subscription, the second Subscription Fee will be charged on August 1st if your initial order was placed between January and May, or March 1st if your initial order was placed between June and October. You can manage your Product Subscription on the Site by accessing your account. If you cancel your Product Subscription, you will still receive Products through the end of the then-current subscription term, but your Product Subscription will not be renewed after the then-current current Product shipment. However, you are not and will not be eligible for a prorated refund of any portion of the Subscription Fee paid for the then-current subscription period. Anyone may re-subscribe at any time following cancellation. BarkYard may cancel your Product Subscription at any time with or without notice to you. You understand and agree that you shall receive no refunds or have the ability to exchange Products once we deliver the Products to the carrier, unless the Product received by you is damaged prior to shipment by us. BarkYard provides a selection of Products which may vary. BarkYard cannot accommodate specific requests for certain Products, as BarkYard operates from a limited inventory of Products depending on availability.
8. BarkYard ships to where law and its operations permit – please contact email@example.com for Product availability. Products are shipped within thirty (30) business days after receipt of payment of the Subscription Fee. This is subject to change at any time, and any delays resulting from unforeseen circumstances are not subject to a refund. Address changes must be made three (3) days before your Subscription Fee is charged in order to take effect for that Product Shipment. If the address is not updated in time, the carrier has the right to charge a forwarding fee. All Products purchased are transported and delivered to you by an independent carrier not affiliated with, or controlled by BarkYard. The risk of loss for such products passes to you when BarkYard delivers these items to the carrier. Title to products purchased from BarkYard passes to you when we receive full payment of all sums due for such Products including any shipping and handling charges.
9. BarkYard does not make any representation, warranty, or otherwise guarantee or promise any level of results from the use of the Products or the Product Services. Actual results can vary based on many factors, and are beyond BarkYard’ control and design. From time to time, BarkYard may use the Product Services to provide you with information that is unique to you and may suggest an action that may affect the results achieved from the use of the Product and/or Product Services if you adopt such suggestions or utilize certain Product Features. You agree that these suggestions are merely promotions and are not a guarantee of any actual result, and you acknowledge your results may differ. You release BarkYard from any claim for monetary or other relief based on BarkYard’ promotions.
10. Telephone communications with BarkYard, including calls with any of our agents or independent contractors, are routinely monitored and/or recorded. You expressly consent, on behalf of yourself and other users of your phone number, to being monitored or recorded. By providing BarkYard with a phone number (including mobile) as your contact number, you expressly authorize us to contact you regarding your account for non-telemarketing communications, via text message or telephone, including the use of prerecorded or auto-dialed calls, using that number.
11. TO THE FULLEST EXTENT ALLOWED BY LAW, BARKYARD, ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE LICENSORS AND SUPPLIERS WILL NOT BE LIABLE FOR ANY DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR PRODUCT SERVICES. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER IN AN ACTION FOR BREACH OF CONTRACT, NEGLIGENCE, OTHER TORT, OR ANY OTHER THEORY, EVEN IF AN AUTHORIZED REPRESENTATIVE OF BARKYARD HAS BEEN ADVISED OR SHOULD HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. BARKYARD’ LIABILITY, AND THE LIABILITY OF BARKYARD’ AFFILIATES, EMPLOYEES, LICENSORS, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT ACTUALLY PAID FOR THE PRODUCT BY THE ORIGINAL RETAIL PURCHASER. THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
12. Your purchase is for your own use, not for resale or export. Your purchase may not be sold, leased, or transferred to restricted countries, restricted end users, or for restricted end uses according to U.S. export and sanctions laws.
13. This is a binding legal agreement between you and BarkYard, and it may not be altered, supplemented, or amended by any other document, except an amendment signed by you and BarkYard’s authorized representative. These Terms of Sale are governed by the laws of the State of Ohio without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. For all disputes not otherwise subject to arbitration in accordance with these Terms of Sale, you agree to submit to the exclusive personal jurisdiction of the state and federal courts in or for Franklin County, Ohio, for the purpose of litigating all such claims or disputes, which courts shall also be the exclusive venue for the litigation such claims and disputes.
14. PLEASE READ THIS SECTION CAREFULLY. YOU AGREE THAT WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. You and BarkYard agree to resolve any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms of Sale exclusively by binding arbitration. Further, you agree arbitration is final and binding, and subject to only very limited review by a court. You also waive your right to any form of appeal, review or recourse to any court or other judicial authority, to the fullest extent allowed by law. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to these Terms of Sale. Any dispute or claim made by you against BarkYard or vice versa arising out of or relating to these Terms of Sale (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration, except that you may take claims to small claims court if they qualify for hearing by such a court. You must first present any claim or dispute to us by contacting BarkYard to allow us an opportunity to resolve the dispute. You may request arbitration if your claim or dispute cannot be resolved within sixty (60) days after presenting the claim or dispute to BarkYard. BarkYard may request arbitration against you at any time after it has notified you of a claim or dispute. The arbitration of any dispute or claim shall be conducted in accordance with the then current and applicable rules of the American Arbitration Association as modified by these Terms of Sale. The place of any arbitration shall be exclusively Franklin County, Ohio, USA, and shall be conducted in the English language. Claims will be heard by a single arbitrator. The arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation or arbitration on a class wide or representative basis, award punitive or consequential damages or any other damages aside from the prevailing party’s actual damages, or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither you, nor BarkYard nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect. There shall be no right or authority for any claims subject to the arbitration clause to be arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general). BarkYard will pay all administrative fees and expenses for any arbitration that BarkYard initiates. All other arbitration will be divided equally between you and BarkYard according to rules of the American Arbitration Association. Each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration hearing. You must contact BarkYard within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute, or you waive the right to pursue any claim based upon such event, facts, or dispute. If you do not wish to be bound by arbitration and waive your rights to participate in a class-action, you must notify BarkYard in writing within thirty (30) days of the date that you purchase the Product and include: (i) your name, (ii) your account number or user name, (iii) your mailing address, (iv) original purchase receipt showing the Product name and date of purchase, and (v) a statement that you do not wish to resolve disputes with BarkYard through arbitration. You must send your notice to: Swiss Farms Products, Inc. (GetBarkYard.com), 3993 Howard Hughes Pky, Suite 250 | Las Vegas, NV 89169-6754, Attn: Consumer Services. If you do not notify BarkYard, you agree to be bound by the arbitration and class-action waiver provisions of these Terms of Sale. This section does not apply to actions for injunctive or other equitable relief to protect confidential information and intellectual property rights or to prevent loss of data or damage to BarkYard’ servers in any court of competent jurisdiction.
15. BarkYard may suspend or terminate any account (or any part thereof) or use of the Product Services, and remove and discard any content within the Product Services, for any reason, including, without limitation, for lack of use, or if BarkYard believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Sale or the Site Terms. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Product Services, may be referred to appropriate law enforcement authorities. BarkYard may also in its sole discretion and at any time discontinue providing the Products or Product Services, or any part thereof, with or without notice. You agree that any termination of your access to the Product Services under any provision of these Terms of Sale or Site Terms may be effected without prior notice, and acknowledge and agree that BarkYard may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Product Services. Further, you agree that BarkYard will not be liable to you or any third-party for any termination of your access to the Product Services.
Effective Date: 1 January 2020