TERMS OF USE FOR THIS WEBSITE

EFFECTIVE DATE: July 17, 2024

Welcome to Open Farm!  Open Farm Inc. and our affiliates and subsidiaries (“OPEN FARM”, “WE”, “US” and “OUR”) urge you to carefully review these Terms of Use (“TERMS”) as they contain the legal terms and conditions that govern your use of and access to the Open Farm website located at https://www.openfarmpet.com/, https://www.openfarmpet.ca and all other websites or digital platforms owned and operated by Open Farm, on which these Terms appear (each individually, the “SITE”). We hope you find our Site informative and enjoyable.

THIS IS A LEGALLY BINDING AGREEMENT. PLEASE READ IT CAREFULLY. YOUR USE OF OUR SITE IS SUBJECT TO THESE TERMS.

PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION PROVISIONS BELOW. THESE PROVISIONS AFFECT HOW DISPUTES ARE RESOLVED.

ACCEPTANCE AND MODIFICATION OF TERMS: By accessing the Site, you agree to these Terms and to our Privacy Policy which is incorporated herein by reference, and to any additional rules that we may post on the Site. We may make changes to these Terms from time to time and may notify you by posting a revised version on the Site. If we make any material changes to these Terms, we will notify you by email through the email address you most recently provided to us or by prominently posting a prominent notice of the changes on the Site. Your continued access or use of our Site following changes to these Terms will constitute your acceptance of any changes to our Terms.

You acknowledge that you have reviewed these Terms in their entirety, that you agree to these Terms in their currently-posted form, and that these Terms constitute binding and enforceable obligations on you. You may also be asked to re-acknowledge and re-accept these Terms following any material changes. If the modified Terms are not acceptable to you, your only recourse is to cease using our services and our Site. Open Farm reserves the right to refuse service, terminate accounts, or remove or edit Content (defined below) on the Site at any time in its sole discretion.

INTENDED USE OF OUR SITE: The Site is intended for personal, non-commercial use and may not be exploited in connection with any business or commercial purpose, even for non-profits, without the prior express written permission of Open Farm. Open Farm welcomes all individuals to the Site. However, certain features of our products and services, our Site, or Content may have age or geographic restrictions or otherwise be limited by applicable laws (see “International Markets” section below). Where such restrictions apply, you may be required to provide certain verification information before proceeding. By using our Site, you agree that you are of legal age to enter into these Terms or have obtained parental or legal guardian consent to do so. We reserve the right to refuse service to anyone for any reason at any time. Open Farm is based in Toronto, Ontario, Canada and is an international business and our Site may be accessible on an international basis. Open Farm makes no claims that the Site, any Content or User Content (defined below) are appropriate or may be transmitted or used outside of Canada and the United States. If you access the Site from outside of Canada or the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.  All personal information collected, used or disclosed in connection with the Site will be in accordance with our Privacy Policy. 

NUTRITION & WELL-BEING INFORMATION: Certain Content presented on our Site is intended to impart general pet nutrition, pet fitness and pet wellness information. Such informational Content is not intended to be construed as or be a substitute for professional veterinary advice, diagnosis or treatment. Always seek the advice of your veterinarian or other qualified health provider with any questions you may have regarding your pet’s medical condition. Never disregard professional medical advice or delay in seeking it because of anything on or associated with our Site, our products or our services. 

CONTENT ON THE SITE: Open Farm may make certain content, including information, text, comments, reviews, graphics, photos, pictures and other images, video, music and other audio files, software or applications, and all other material contained on the Site or features and functions, available on our Site (collectively, the “CONTENT”). We may place specific limited uses, such as the number of times you may download the Content, how you may use or reproduce the Content, how many devices you may use to access the Content, or additional terms of use applicable to specific Content.

Content is owned by Open Farm, our affiliates, subsidiaries or our licensors, and is protected by copyright, trademark and other laws and regulations of Canada, the United States and foreign jurisdictions. You may not use Content in any way not expressly permitted by these Terms and if you do, your right to use the Content will automatically terminate. Unless expressly stated otherwise, you may not reproduce, modify, disseminate or otherwise exploit our Content in any way or form without our prior express written permission. The Site and its Content are protected by copyright law as well as other intellectual property rights. In particular, our Content and the Site display the trademarks, names, slogans, logos, characters and service marks (“TRADEMARKS”) that belong to Open Farm or have been licensed to us. Nothing contained on our Site should be construed as granting any license or right to use any copyright or Trademark displayed on our Site.

Your use/misuse of the Trademarks or the copyrighted Content displayed on our Site, except as provided in these Terms, is strictly prohibited. Open Farm will aggressively enforce its intellectual property rights to the fullest extent of the law, including monetary damages, civil penalties, and criminal prosecution. All rights not expressly granted herein are reserved.

USER CONTENT SUBMISSIONS: Open Farm may include features on our Site that allow you to share your communications or content, including but not limited to product reviews and customer testimonials (“USER CONTENT”) with us and with other users of our Site. You agree you will not send, upload or transmit any User Content of any type that infringes or violates rights of any party, including without limitation, rights to privacy, publicity, personality or the right to one’s image; copyright, trademark, patent or other intellectual property rights; or violates these Terms.

Please note that we reserve the right to use any product reviews or customer testimonials for our marketing and promotional purposes. By submitting or otherwise exchanging User Content with us, you understand that all such information, whether publicly posted or privately transmitted, is the sole responsibility of the individual or person that submitted such User Content. You further agree that such User Content will not be considered or treated as confidential and may be seen, read, used or re-transmitted by Open Farm or other users of our Site. You explicitly represent and warrant that you are the owner of any User Content that you submit or cause to be submitted or have all rights and licenses necessary regarding such User Content and hereby grant Open Farm a royalty-free, perpetual, irrevocable, unrestricted, world-wide, nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, adapt, transform, distribute, transmit, broadcast, perform and display such User Content in any media or medium, or any form, format, or forum now known or hereafter developed. Open Farm may sublicense its rights to any User Content through multiple tiers of sublicenses and you irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials for such User Content. Open Farm is under no obligation to monitor or use any User Content. If you elect to provide such User Content to us via the Site, Open Farm has no obligations to you with respect to such ideas or suggestions and may use them, or not use them, in our sole discretion and for any purpose whatsoever.

USER OBLIGATIONS: In using our Site and providing User Content, you agree that we exclusively reserve the right to control the Content available on our Site and understand that we will comply and cooperate with any law enforcement authorities and/or court order requesting or directing us to disclose the identity of anyone that has posted information or materials to our Site. While we may monitor the Content on our Site, including User Content, we are under no obligation to do so and assume no responsibility or liability arising therefrom. You further agree that you are prohibited from posting or transmitting, through or in connection with the Site:

• any unlawful, threatening, defamatory, obscene, scandalous, deceptive, fraudulent, tortious, obscene, pornographic, inflammatory, profane or infringing material or any material that could constitute or encourage conduct that would be considered a criminal offence, give rise to civil liability, or otherwise violate any law;
• any virus, worm, Trojan horse, time bomb, spyware or other computer code, file, or program that is harmful or invasive or may, or is intended to, damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment;
• any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letter,” “pyramid scheme” or investment opportunity, or any other form of solicitation; and
• any material non-public information about a party without the proper authorization to do so.

 In addition, you will not use our Sites:

• for any fraudulent or unlawful purpose;
• to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including but not limited to rights to privacy, publicity, personality or the right to one’s image;
• to harvest or collect Personal Information about other users;
• to impersonate any person or entity, including Open Farm or any of our affiliates or users;
• to falsely state or otherwise misrepresent your affiliation with any person or entity;
• to express or imply that we endorse any statement or posting you make, or any products or services you may offer;
• to interfere with or disrupt the operation of our Site or the servers or networks used to make the Site available, or violate any requirements, procedures, policies or regulations of such networks;
• to restrict or inhibit any other person from using the Site, including by hacking or defacing any portion of the Site;
• to advertise or offer to sell or buy any goods or services without our express prior written consent;
• to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of, use of, or access to the Site;
• to modify, adapt, translate, reverse engineer, decompile or disassemble any portion of our Site;
• to remove any copyright, trademark or other proprietary rights notices from the Site or from materials originating from the Site;
• to frame or mirror any part of the Site without our express prior written consent;
• to create a database by systematically downloading and storing all or any Content from our Site; or
• to use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or in any way reproduce or circumvent the navigational structure or presentation of our Site, without our express prior written consent.​

 

LINKING; THIRD PARTY LINKS: Our Site may contain links to other websites. Open Farm does not recommend, monitor, control or endorse any third party advertising or content, or the content on any third party websites and is not responsible for their terms of use or privacy policies or how any third party may treat, handle or share your information. Your use of third party websites is at your own risk. Please be mindful of this as you link to other websites. Other websites may link to our Site, with or without our authorization, and we reserve the right to block or disable any links to or from our Site at any time and for any reason. In general, Open Farm does not object to links to our Site from third party websites. However, all links to any third party website are subject to these Terms.

ACCOUNTS, PASSWORDS & SECURITY: Certain areas of our Site require registration or otherwise ask you to provide information to participate in certain features or access certain content. If you elect not to provide such information, you may not be able to access certain content or participate in certain features of our Site, or any features at all. If the Site requires you to create an account or otherwise submit information, you must complete the specified process by providing Open Farm with current, complete, and accurate information as requested by the applicable registration form. It is your responsibility to maintain the currency, completeness, and accuracy of your registration data, and any loss caused by your failure to do so is your responsibility. During the registration process, you will be asked to enter your name and valid e-mail address and choose a password. It is entirely your responsibility to maintain the confidentiality of your password and account. Additionally, you are entirely responsible for any and all activities that occur under your account. You agree to notify Open Farm immediately of any unauthorized use of your account. You further agree not to email, post, or otherwise disseminate any user ID, password, or other information which provides you access to our Site. Open Farm is not liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge, and is not responsible for any delay in shutting down your account after you have reported a breach of security to us. Open Farm reserves the right to refuse service, terminate accounts, or remove or edit Content at any time in its sole discretion.  All information provided in connection with user accounts is dealt with in accordance with our Privacy Policy.

USE OF CREDIT CARD: If you wish to purchase any product or service made available through our Site, you may be asked to supply certain information relevant to your transaction, including without limitation your credit card number, the expiration date and security code of your credit card, your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant us or the third party collecting that information on our behalf the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any transaction. All information provided in connection with transactions is dealt with in accordance with our Privacy Policy.

STANDARD PURCHASES: Upon completing the applicable form associated with the purchase of the product(s) that you have added to your shopping cart, and upon providing the requisite registration data, the credit card that you provided on the form (“ACTIVE CREDIT CARD”) will be charged the applicable purchase price for the product(s), plus applicable shipping fees and sales tax.

SUBSCRIPTION PURCHASES / CANCELLATION: Where you register for the subscription option in order to obtain your selected product(s) automatically, pursuant to your selected schedule (your “PLAN”), your Active Credit Card will be charged the applicable amount on a periodic, recurring basis every time your selected product(s) is shipped to you pursuant to your Plan. You acknowledge and agree that Open Farm will not obtain any additional authorization from you for these recurring payments. Every time that your product(s) are shipped to you in connection with your Plan, you re-affirm that Open Farm is authorized to bill to your Active Credit Card and to have the fees applied to same. The price charged for a product(s) in your Plan may be changed at any time by Open Farm, in its sole discretion. If this occurs, Open Farm will contact you notifying you of the change in price at least thirty (30) days before shipping the next order pursuant to your Plan.  You may cancel your Plan at any time by speaking with a customer service representative or through our Site. Other than where we decide in our sole discretion, we will not refund fees paid prior to the termination date and you will remain liable for any unpaid charges previously billed to your Active Credit Card.

RETURNS: We accept returns of purchases made on our Site within fifteen (15) days of purchase in accordance with our Return Policy. For a full description of our Return Policy, please click here.

PRICING & CURRENCY: To better serve our customers, Open Farm has developed unique pricing for each of its products for both the U.S. and Canadian markets. If you are a customer buying Open Farm products in Canada (or ordering product(s) to an address in Canada) on https://www.openfarmpet.ca, you will pay Open Farm Canadian dollar retail prices (“CANADIAN PRICES”). If you are a customer buying Open Farm products in the U.S. (or ordering product(s) to an address in U.S.) on https://www.openfarmpet.com, you will pay Open Farm’s U.S. dollar retail prices (“U.S. PRICES”). The prices displayed to you on our Site will be quoting our Canadian Prices (denominated in Canadian dollars) if you are visiting https://www.openfarmpet.ca or if you select our Canadian site by clicking the “Canada” button in the footer of our Site. The prices displayed to you on our Site will be quoting our U.S. Prices (denominated in U.S. dollars) if you are visiting https://www.openfarmpet.com or if you select our U.S. portal by clicking the “USA” button in the footer of our Site. Orders shipping to Canada will only qualify for the Canadian Prices and orders shipping to the U.S. will only qualify for the U.S. Prices. Open Farm reserves the right to change its Canadian Prices or U.S. Prices at any time in its sole discretion.

INTERNATIONAL MARKETS: At this time, Open Farm only fulfills orders to certain parts of Canada and the Continental USA. We do not ship to international markets, certain Canadian locations (Yukon, Nunavut or the Northwest Territories) or Hawaii, Puerto Rico or Alaska.

RISK OF LOSS: All items purchased from Open Farm are made pursuant to a shipment contract. This means that risk of loss and title for such items pass to you upon our delivery to the carrier.

LIMITATION OF LIABILITY: The use of our Site, User Content and Content is at your own risk and they are provided “as is” without any express warranties or representations of any kind. Transmissions over the Internet and communications networks are not in our control and can never be completely secure. Accordingly, we cannot and shall not be liable for any delay, failure, interruption, compromise or corruption of any data or other information transmitted in connection with use of our Site, including information you provide to us on our Site. Open Farm does not endorse, verify, evaluate or guarantee any information provided by users and nothing shall be considered as an endorsement, verification or guarantee of any User Content. 

TO THE FULLEST EXTENT PERMITTED BY LAW, OPEN FARM DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, STATUTORY AND OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE REGARDING OUR SITE OR THE USE OF OUR SITE.  WE DO NOT PROMISE THAT OUR SITE, NOR ANY INFORMATION, CONTENT OR MATERIALS MADE AVAILABLE THROUGH OUR SITE WILL BE ACCURATE, RELIABLE, COMPLETE, ERROR FREE, OR COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. OPEN FARM FURTHER MAKES NO REPRESENTATION OR WARRANTY REGARDING THE STATEMENTS, ACTS OR OMISSIONS OF ANY THIRD PARTIES, THAT OUR SITE AND ANY OF THEIR FEATURES WILL BE AVAILABLE OR THAT ACCESS WILL BE UNINTERRUPTED OR SECURE, OR THAT DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS OR NETWORKS THROUGH WHICH THE SITE IS MADE AVAILABLE ARE SECURE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

In no event shall Open Farm, the Site, our licensors, suppliers and Content providers be liable for any damages, including, without limitation, direct, indirect, incidental, consequential, special, exemplary and special damages or damages resulting from lost data or business interruption, regardless of the form of action or the basis of the claim, whether based on warranty, contract, tort, strict liability or any other legal theory, and whether or not a party has been advised of the possibility of damages.

If, for any reason, Open Farm shall be found to be liable, our aggregate liability to you or any other party or parties claiming with, under or through you, shall be limited to the lesser of the total amount paid by you to access and use our Site or U.S. $1000, notwithstanding any claim that such remedy fails of its essential purpose. To the greatest extent permitted by law, no claim or action arising from or concerning the Site, Content or otherwise hereunder may be brought later than one (1) year from the date the claim or cause of action arose. 

Some jurisdictions do not allow the disclaimer of certain types of damages or liability in whole or in part with respect to consumer agreements and although the exclusions, limitations and disclaimers in these Terms shall always be construed to take full advantage of their meaning to the extent permitted by law, they may not be applicable to you. You should consult your own legal advisor should you wish to determine the laws and regulations that apply to you.

INDEMNIFICATION: Except to the extent prohibited by law, you agree to defend, indemnify, and hold Open Farm, its officers, directors, employees, agents, licensors and suppliers, harmless from and against any claims, actions or demands, costs, liabilities, and settlements including without limitation, reasonable legal and accounting fees, arising out of your use of or activities in connection with our Site or any allegation that User Content from you infringes or violates the intellectual property rights of others, or that otherwise arises out of your violation of these Terms.

TERMINATION AND ACCESS CANCELLATION: If you breach any of these Terms, Open Farm has the right, at its sole discretion and without prior notice or refund of any payment, to suspend or disable your access to our services or our Site. We may terminate your access to our services or our Site at any time, without cause and you agree that we will have no liability to you if we do. If we disable your access, you will not be able to reestablish access without our permission. We are under no obligation to continue to support our services or our Site in any way or to provide you with updates or error corrections. Your rights under these Terms will terminate immediately and automatically, with or without notice in our sole discretion, if we cease to support our services or our Site. If you have registered with us for any services, you may cancel your account with us at any time by contacting us as set out below.

SWEEPSTAKES, CONTESTS AND PROMOTIONS: Open Farm or its authorized partners may operate sweepstakes, contests, and promotions (“PROMOTIONS”) through our Site. You should carefully review the rules (e.g., the “Official Rules”) of each Promotion in which you participate, as they may contain additional important information about Open Farm’s rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotions. To the extent that the terms and conditions of such Official Rules conflict with these Terms, the terms and conditions of such Official Rules for each Promotion will control for that Promotion.  Coupons, rebates and specific product offers will be subject to the specific terms and conditions that accompany the particular coupon, rebate or specific product offer.

BINDING ARBITRATION AND CLASS ACTION WAIVER IF YOU LIVE IN (OR ARE A BUSINESS WITH YOUR PRINCIPAL PLACE OF BUSINESS IN) CANADA:

Any controversy, dispute, disagreement, or claim arising out of, relating to or in connection with these Terms or any breach thereof, including any question regarding their existence, validity, or termination, shall be finally and conclusively resolved by arbitration under the Arbitration Rules of the ADR Institute of Canada, Inc. (the “Institute”). All disputes arising under these Terms shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to principles of conflict of laws.  The parties agree not to sue in court in front of a judge or jury. Instead, a neutral arbitrator will decide, and the arbitrator’s decision will be final. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity are not allowed. The following provisions shall govern any arbitration hereunder:

(a) The legal seat of arbitration shall be Toronto, Ontario, Canada.

(b) There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by the respondent of the request for arbitration or in default thereof appointed by the Institute.

(c) The language of the arbitration, including the hearings, documentation, and award, shall be English.

(d) The Parties shall each bear their own legal costs and expenses of the arbitration.

(e) Any decision of the arbitrator shall be final and binding on the parties and their respective successors and assigns and there shall be no right to appeal such decision, whether on a question of law, a question of fact, or a mixed question of fact and law.

(f) The governing law of the arbitration shall be the laws of the Province of Ontario and the federal laws of Canada applicable therein.

(g) The arbitration procedures, hearings, documents, and award shall remain strictly confidential between the parties.

A party must file any claim or dispute (except intellectual property disputes) within one year from when it first could be filed. Otherwise, it’s permanently barred.

This Binding Arbitration and Class Action Waiver Section (“CANADIAN ARBITRATION SECTION”) applies to any claim or controversy between the parties, except disputes relating to the enforcement or validity of your or your licensors’ or our or our licensors’ intellectual property rights. These Terms govern, to the extent of conflict with the Institute’s arbitration rules.

BINDING ARBITRATION AND CLASS ACTION WAIVER IF YOU LIVE IN (OR ARE A BUSINESS WITH YOUR PRINCIPAL PLACE OF BUSINESS IN) THE UNITED STATES: Any dispute under these Terms will be settled by binding individual arbitration before the American Arbitration Association ("AAA") under the Federal Arbitration Act (“FAA”). All disputes arising under these Terms shall be governed by and interpreted in accordance with the laws of New York, without regard to principles of conflict of laws.  The parties agree not to sue in court in front of a judge or jury. Instead, a neutral arbitrator will decide, and the arbitrator’s decision will be final except for a limited right of review under the FAA. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity are not allowed.

This Binding Arbitration and Class Action Waiver Section (“US ARBITRATION SECTION”) applies to any claim or controversy between the parties, except disputes relating to the enforcement or validity of your or your licensors’ or our or our licensors’ intellectual property rights. These Terms govern, to the extent of conflict with the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules.

The AAA will conduct all arbitrations under its Commercial Arbitration Rules (or if the value of the dispute is $75,000 or less, the Consumer Arbitration Rules). For more information, see www.adr.org or call 1-800-778-7879. Any in-person hearing will take place in the Borough of Manhattan, New York, New York.

A party must file any claim or dispute (except intellectual property disputes) within one year from when it first could be filed. Otherwise, it’s permanently barred.

If any part of this Arbitration Section is found to be illegal or unenforceable, the remainder will remain in effect (with an arbitration award issued before any court proceeding begins), except that if a finding of partial illegality or unenforceability would allow class-wide or representative arbitration, this Arbitration Section will be unenforceable in its entirety.

CONTROLLING LAW AND JURISDICTION: If you live in (or are a business with your principal place of business in) Canada, these Terms and any action related thereto will be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to its conflict of laws provisions, as set forth in the Canadian Arbitration Section, except that the Arbitration Act (Ontario) governs all provisions relating to arbitration. . YOU HEREBY IRREVOCABLY WAIVE YOUR RIGHT TO A JURY TRIAL OR TO CLAIM THAT PROVINCE OF ONTARIO IS AN INCONVENIENT FORUM TO HEAR CLAIMS AND DISPUTES.

If you live in (or are a business with your principal place of business in) the United States, these Terms and any action related thereto will be governed by the laws of the state of New York, without regard to its conflict of laws provisions, as set forth in the US Arbitration Section, except that the Federal Arbitration Act governs all provisions relating to arbitration. YOU HEREBY IRREVOCABLY AGREE TO SETTLE ANY DISPUTE UNDER THESE TERMS BY BINDING INDIVIDUAL ARBITRATION IN ACCORDANCE WITH THE ARBITRATION SECTION.

ENTIRE AGREEMENT AND ASSIGNMENT: These Terms, including our Privacy Policy constitute the entire agreement between you and Open Farm regarding our Site and supersede any and all other terms, representations, promises or discussions. Only Open Farm has the authority to agree to amendments to these Terms, and to be and be considered binding, any amendments must be in writing and executed by Open Farm. You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and of no effect. Open Farm may assign or transfer these Terms, at its sole discretion and without restriction.

ENFORCEMENT AND SEVERABILITY: The failure of Open Farm to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized Open Farm representative. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

CONTACT US:

Questions or comments regarding our Site, including reports of non-functioning links, should be submitted by contacting us here or via mail to Open Farm Inc., 559 College Street, Suite 401, Toronto, Ontario, M6G 1A9, Canada or by email at support@openfarmpet.com  

The parties have agreed that this contract and all related documents be drafted in English. Les parties aux présentes ont demandé et convenu que le présent contrat et tout document y afférent soient rédigés en anglais.  

 

SMS MOBILE MESSAGE MANAGEMENT PROGRAM TERMS AND CONDITIONS

Last revised: February 1, 2021

ReChargeSMS (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

 

User Opt In

The Program allows Users to receive SMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your

participation in the Program. By participating in the Program, you agree to receive autodialed or predetermined mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.

 

User Opt Out

If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, STOPALL, to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. 

You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

 

Duty to Notify and Indemnify

If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number.

This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.

YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.

 

Program Description

Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the management of the users digital subscription, services, and events.

 

Cost and Frequency

Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

 

Support Instructions

For support regarding the Program, text “HELP” to the number you received messages from or email us at wesley@rechargeapps.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.

 

Our Disclaimer of Warranty

The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.

 

Participant Requirements

You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.

 

Age Restriction

You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

 Prohibited Content

You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:

 Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;

• Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
• Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
• Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
• Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
• Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is

Dispute Resolution

In the event that there is a dispute, claim, or controversy between you and Us, or between you and ReChargeSMS or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Los Angeles, California before one arbitrator.

The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which ReChargeSMS’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.

Open Farm Refer-a-Friend Program

As a Refer-a-Friend member (a “Referrer”), you are subject to Open Farm’s Terms of Use (above) and Open Farm’s Privacy Policy found here: https://openfarmpet.ca/pages/privacy, as well as the following additional Terms & Conditions for Open Farm’s Refer-a-Friend program:

• Qualified Referral. A Qualified Referral is defined as a purchase made at www.openfarmpet.com by a person (a "Referred Customer") who arrives to our website by clicking your Refer-a-Friend program link and makes an eligible purchase for the first time from Open Farm. You are limited to one Qualified Referral for each Referred Customer; in other words, additional/repeat purchases made by a Referred Customer are not counted as additional Qualified Referrals. Referred Customers must be new customers of Open Farm and must not have made a prior purchase on www.openfarmpet.com. This Refer-A-Friend Program cannot be combined with any other Open Farm promotions or incentives.
• Referred Customer. The Referred Customer and the Referrer cannot be the same natural person (for example, by using a different email address) and cannot be from the same household (for example, by using the same address).
• Referral Rewards. For you to earn referral rewards as a Referrer, the Referred Customer must complete an order greater than CAD $90 in total value, minus all applicable fees including taxes, discounts, shipping, returns, chargebacks, fraudulent payments, and/or other third-party fees. Rewards are earned in the currency of their original purchase.
• Reward Payments. A referral reward earned by you will be in the amount of a CAD $20 coupon for one-time use on our website (excluding applicable taxes and shipping fees) and is limited to one referral reward per Qualified Referral in accordance with these Terms and Conditions. If you have an auto-ship account, the CAD $20 coupon shall be automatically applied on your next purchase. If your purchase is under CAD $20, your discount will only be applied up to the subtotal of your purchase (excluding applicable taxes and shipping fees) and you will not receive any cash reward for the difference. The maximum Qualified Referrals earned per calendar month may be no more than 10 Qualified Referrals. As a Referrer, you are responsible for any and all tax liability resulting from Referral Rewards. You will receive your reward within two (2) days of the Referred Customer’s order being placed. Your reward will expire if not used within six (6) months of receipt. Rewards are earned in the currency of their original purchase. Rewards are non-transferable. Rewards will under no circumstances be paid out in cash.
• Eligibility. Eligibility is limited to only individual residents in Canada and the United States who are the age of majority in your jurisdiction (i.e. 18 years old and up). Open Farm’s Refer-a-Friend Program cannot be used by businesses or individuals for affiliate lead generation or posting and sharing on affiliate sites or blogs, forums, or as determined in Open Farm’s sole discretion.
• No Spam. You must comply with all up-to-date “SPAM” laws. For example, emails must be created and distributed in a personal manner and bulk email distribution is prohibited. Any distribution of your referral link that could constitute unsolicited commercial electronic messages or "spam" under any applicable law or regulation is expressly prohibited and will be grounds for immediate termination of your account and exclusion from Open Farm’s Refer-a-Friend program. You must not distribute unique referral links to strangers, individuals under the age of majority in the recipient’s jurisdiction, use bots or automated programs to distribute unique referral links, or pay to advertise the unique referral link, or attempt to market, reproduce, sell or resell referral rewards to any third party whatsoever.
• Right to Close Accounts. Open Farm reserves the right to close the account(s) and to void any pending awards with immediate effect of any Referrer and/or Referred Customer and to request proper payment if the Referrer and/or Referred Customer attempts to use the Open Farm Refer-a-Friend program in a questionable manner or breaches any of these Terms & Conditions or is in violation of any law, statute or governmental regulation. Open Farm may also restrict or close your account without notice if the Referral Program is in violation of applicable laws or decisions from public authorities in your jurisdiction. You must also not violate the intellectual property rights of Open Farm.
• Right to Cancel Program or Change Terms. Open Farm reserves the right to cancel the Refer-a-Friend Program or to change or update these Terms & Conditions at any time in its sole discretion. Any unclaimed referral rewards will be forfeited at that time.