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Disputes
Any dispute or claim arising out of or relating to these
Vital Care Core Terms & Conditions, 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 Vital Care Core
Terms & Conditions, 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 limited to: (a) any dispute or claim that arose before
the existence of these or any prior Vital Care Core Terms &
Conditions (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
Vital Care Core Terms & Conditions. “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 Vital Care Core Terms & Conditions; (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 Vital Care Core Terms &
Conditions 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 Vital Care
Core Terms & Conditions 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.
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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, including any Vital Care account information
(formerly known as Pals Rewards); (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.
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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 Vital Care Core Terms &
Conditions. 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 Vital Care Core Terms & Conditions, 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 Vital
Care Core Terms & Conditions. 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 Vital Care Core Terms &
Conditions 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.
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Costs of Arbitration
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.
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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 section) 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.
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STAGE ONE: If at least one hundred (100)
Disputes are submitted as part of a Mass Arbitration,
counsel for the claimants and counsel for Petco shall each
select fifty (50) Disputes to be filed and to proceed as
cases in individual arbitrations as part of this initial
staged process. The number of Disputes to be selected to
proceed in Stage One can be increased by agreement of
counsel for the parties (and if there are fewer than one
hundred (100) Disputes, all shall proceed individually in
Stage One). Each of the one hundred (100) (or fewer) cases
shall be assigned to a different arbitrator and proceed
individually. If a case is withdrawn before the issuance
of an arbitration award, another claim shall be selected
to proceed as part of Stage One. The remaining Disputes
shall not be filed or deemed filed in arbitration nor
shall any arbitration fees be assessed or collected in
connection with those claims. After this initial set of
proceedings, counsel for the parties shall participate in
a global mediation session with a retired federal or state
court judge jointly selected by counsel in an effort to
resolve the remaining Disputes (as informed by the
adjudications of cases in Stage One), and Petco shall pay
the mediator's fee.
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STAGE TWO: If the remaining Disputes have
not been resolved at the conclusion of Stage One, counsel
for the claimants and counsel for Petco shall each select
one hundred (100) Disputes per side to be filed and to
proceed as cases in individual arbitrations as part of a
second staged process. The number of Disputes to be
selected to proceed as part of this second staged process
can be increased by agreement of counsel for the parties
(and if there are fewer than two hundred (200) Disputes,
all shall proceed individually in Stage Two). No more than
five (5) cases may be assigned to a single arbitrator to
proceed individually. If a case is withdrawn before the
issuance of an arbitration award, another claim shall be
selected to proceed as part of Stage Two. The remaining
Disputes shall not be filed or deemed filed in arbitration
nor shall any arbitration fees be assessed or collected in
connection with those claims. After this second set of
staged proceedings, the parties shall engage in a global
mediation session of all remaining Disputes with a retired
federal or state court judge jointly selected by counsel
in an effort to resolve the remaining Disputes (as
informed by the adjudications of cases in Stages One and
Two), and Petco shall pay the mediator's fee. Upon the
completion of the mediation set forth in this Stage Two,
each remaining Dispute (if any) that is not settled or not
withdrawn shall be opted out of arbitration and may
proceed in a court of competent jurisdiction consistent
with the remainder of these Vital Care Core Terms &
Conditions. Notwithstanding the foregoing, counsel for the
parties may mutually agree in writing to proceed with the
adjudication of some or all of the remaining Disputes in
individual arbitrations consistent with the process set
forth in Stage Two (except Disputes shall be randomly
selected and mediation shall be elective by agreement of
counsel) or through another mutually agreeable process.
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.
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Opting Out of the Arbitration Provision
Petco's updates to these Vital Care Core Terms &
Conditions 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 Vital Care Core Terms & Conditions, 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.
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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.
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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.