Terms of service
Overview
Welcome to Zebra Dolphin! The terms “Zebra Dolphin”, "we", "us" and "our" refer to Flaviar, Inc. Zebra Dolphin operates this store and website, including all related information, content, features, tools, products and services in order to provide you, the customer, with a curated shopping experience (the "Services"). Zebra Dolphin is powered by Shopify, which enables us to provide the Services to you.
The below terms and conditions, together with any policies referenced herein (these "Terms of Service" or "Terms") describe your rights and responsibilities when you use the Services.
Please read these Terms of Service carefully, as they include important information about your legal rights and cover areas such as warranty disclaimers and limitations of liability.
By visiting, interacting with or using our Services, you agree to be bound by these Terms of Service and our Privacy Policy [LINK]. If you do not agree to these Terms of Service or Privacy Policy, you should not use or access our Services.
SECTION 1 - ACCESS AND ACCOUNT
By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, and you have given us your consent to allow any of your minor dependents to use the Services on devices you own, purchase or manage.
To use the Services, including accessing or browsing our online stores or purchasing any of the products or services we offer, you may be asked to provide certain information, such as your email address, billing, payment, and shipping information. You represent and warrant that all the information you provide in our stores is correct, current and complete and that you have all rights necessary to provide this information.
You are solely responsible for maintaining the security of your account credentials and for all of your account activity. You may not transfer, sell, assign, or license your account to any other person.
SECTION 2 - OUR PRODUCTS
We have made every effort to provide an accurate representation of our products and services in our online stores. However, please note that colors or product appearance may differ from how they may appear on your screen due to the type of device you use to access the store and your device settings and configuration.
We do not warrant that the appearance or quality of any products or services purchased by you will meet your expectations or be the same as depicted or rendered in our online stores.
All descriptions of products are subject to change at any time without notice at our sole discretion. We reserve the right to discontinue any product at any time and may limit the quantities of any products that we offer to any person, geographic region or jurisdiction, on a case-by-case basis.
SECTION 3 - ORDERS
When you place an order, you are making an offer to purchase. Zebra Dolphin reserves the right to accept or decline your order for any reason at its discretion. Your order is not accepted until Zebra Dolphin confirms acceptance. We must receive and process your payment before your order is accepted. Please review your order carefully before submitting, as Zebra Dolphin may be unable to accommodate cancellation requests after an order is accepted. In the event that we do not accept, make a change to, or cancel an order, we will attempt to notify you by contacting the e‑mail, billing address, and/or phone number provided at the time the order was made.
Your purchases are subject to return or exchange solely in accordance with our Refund Policy [LINK].
You represent and warrant that your purchases are for your own personal or household use and not for commercial resale or export.
SECTION 4 - PRICES AND BILLING
Prices, discounts and promotions are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Unless otherwise expressly stated, posted prices do not include taxes, shipping, handling, customs or import charges.
Prices posted in our online stores may be different from prices offered in physical stores or in online or other stores operated by third parties. We may offer, from time to time, promotions on the Services that may affect pricing and that are governed by terms and conditions separate from these Terms. If there is a conflict between the terms for a promotion and these Terms, the promotion terms will govern.
You agree to provide current, complete and accurate purchase, payment and account information for all purchases made at our stores. You agree to promptly update your account and other information, including your email address, credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
You represent and warrant that (i) the credit card information you provide is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any.
SECTION 5 - SHIPPING AND DELIVERY
We are not liable for shipping and delivery delays. All delivery times are estimates only and are not guaranteed. We are not responsible for delays caused by shipping carriers, customs processing, or events outside our control. Once we transfer products to the carrier, title and risk of loss passes to you.
SECTION 6 - INTELLECTUAL PROPERTY
Our Services, including but not limited to all trademarks, brands, text, displays, images, graphics, product reviews, video, and audio, and the design, selection, and arrangement thereof, are owned by Zebra Dolphin, its affiliates or licensors (“Zebra Dolphin IP”) and are protected by U.S. and foreign patent, copyright and other intellectual property laws. Unauthorized use of Zebra Dolphin IP is strictly prohibited. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Services without our prior written consent. Except as expressly provided herein, nothing in these Terms grants or shall be construed as granting a license or other rights to you under any patent, trademark, copyright, or other intellectual property of Zebra Dolphin, Shopify or any third party. Unauthorized use of the Services may be a violation of federal and state intellectual property laws. All rights not expressly granted herein are reserved by Zebra Dolphin.
Zebra Dolphin's names, logos, product and service names, designs, and slogans are trademarks of Zebra Dolphin or its affiliates or licensors. You must not use such trademarks without the prior written permission of Zebra Dolphin. All other names, logos, product and service names, designs, and slogans on the Services are the trademarks of their respective owners.
SECTION 7 - OPTIONAL TOOLS
You may be provided with access to customer tools offered by third parties as part of the Services, which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools "as is" and "as available" without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of the optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new features through the Services (including the release of new tools and resources). Such new features shall also be deemed part of the Services and are subject to these Terms of Service.
SECTION 8 - THIRD-PARTY LINKS
The Services may contain materials and hyperlinks to websites provided or operated by third parties (including any embedded third party functionality). We are not responsible for examining or evaluating the content or accuracy of any third-party materials or websites you choose to access. If you decide to leave the Services to access these materials or third party sites, you do so at your own risk.
We are not liable for any harm or damages related to your access of any third-party websites, or your purchase or use of any products, services, resources, or content on any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products and services should be directed to the third-party.
SECTION 9 - RELATIONSHIP WITH SHOPIFY
Zebra Dolphin is powered by Shopify, which enables us to provide the Services to you. However, any sales and purchases you make in our Store are made directly with Zebra Dolphin. By using the Services, you acknowledge and agree that Shopify is not responsible for any aspect of any sales between you and Zebra Dolphin, including any injury, damage, or loss resulting from purchased products and services. You hereby expressly release Shopify and its affiliates from all claims, damages, and liabilities arising from or related to your purchases and transactions with Zebra Dolphin.
SECTION 10 - PRIVACY POLICY
All personal information we collect through the Services is subject to our Privacy Policy, which can be viewed here [LINK], and certain personal information may be subject to Shopify's Privacy Policy, which can be viewed here. By using the Services, you acknowledge that you have read these privacy policies. Because the Services are hosted by Shopify, Shopify collects and processes personal information about your access to and use of the Services in order to provide and improve the Services for you. Information you submit to the Services will be transmitted to and shared with Shopify as well as third parties that may be located in other countries than where you reside, in order to provide services to you. Review our privacy policy [LINK] for more details on how we use your personal information.
SECTION 11 - FEEDBACK
If you submit, upload, post, email, or otherwise transmit any ideas, suggestions, feedback, reviews, proposals, plans, or other content (collectively, "Feedback"), you grant us a perpetual, worldwide, sublicensable, royalty-free license to use, reproduce, modify, publish, distribute and display such Feedback in any medium for any purpose, including for commercial use. We may, for example, use our rights under this license to operate, provide, evaluate, enhance, improve and promote the Services and to perform our obligations and exercise our rights under the Terms of Service.
You also represent and warrant that: (i) you own or have all necessary rights to all Feedback; (ii) you have disclosed any compensation or incentives received in connection with your submission of Feedback; and (iii) your Feedback will comply with these Terms. We are and shall be under no obligation (1) to maintain your Feedback in confidence; (2) to pay compensation for your Feedback; or (3) to respond to your Feedback.
We may, but have no obligation to, monitor, edit or remove Feedback that we determine in our sole discretion to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party's intellectual property or these Terms of Service.
You agree that your Feedback will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your Feedback will not contain libelous or otherwise unlawful, abusive or obscene Feedback, or contain any computer virus or other malware that could in any way affect the operation of the Services or any related website. You may not use a false email address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any Feedback. You are solely responsible for any Feedback you make and its accuracy. We take no responsibility and assume no liability for any Feedback posted by you or any third-party.
SECTION 12 - ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on or in the Services that contain typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information is inaccurate at any time without prior notice (including after you have submitted your order).
SECTION 13 - PROHIBITED USES
You may access and use the Services for lawful purposes only. You may not access or use the Services, directly or indirectly: (a) for any unlawful or malicious purpose; (b) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (c) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (d) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or harm any of our employees or any other person; (e) to transmit false or misleading information; (f) to send, knowingly receive, upload, download, use, or re-use any material that does not comply with the these Terms; (g) to transmit, or procure the sending of, any advertising or promotional material, including any "junk mail," "chain letter," "spam," or any other similar solicitation; (h) to impersonate or attempt to impersonate any other person or entity; or (i) to engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Services, or which, as determined by us, may harm Zebra Dolphin, Shopify or users of the Services, or expose them to liability.
In addition, you agree not to: (a) upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services; (b) reproduce, duplicate, copy, extract, sell, resell or exploit any portion of the Services; (c) collect or track the personal information of others; (d) spam, phish, pharm, or pretext the services; (e) use any robot, spider, scraping, data gathering and extraction tools, automatic devices or processes, AI tools (such as agentic AI) or automated or manual means to access the Services; or (f) interfere with, bypass, or circumvent the security or authorization features, robot exclusion headers, or other measures we employ to restrict access to the Services. We reserve the right to suspend, disable, or terminate your account at any time, without notice, if we determine that you have violated any part of these Terms.
SECTION 14 - AGENTS
14.1 This section ("Agent Terms") applies if you use, allow, enable, or cause the deployment of an Agent to access, use, or interact with any Services. "Agent" means any software or service that takes autonomous or semi-autonomous action on behalf of, or at the instruction of, any person or entity and that can be executed on behalf of or using persons device, without direct supervision.
14.2 No Agent may access, use, or interact with Services unless, at all times, it identifies itself and operates in strict accordance with the requirements in section 14.4 below. In addition, no Agent may access, use, or interact with Services if we have requested that the Agent refrain from accessing, using, or interacting with any service.
14.3 We may limit, including by technical measures, whether and how any Agent accesses, uses, and interacts with Services.
14.4 Agents must: (i) in all HTTP/HTTPS requests, identify that the request is from an Agent and disclose the name of the Agent by including the following in the request's user agent string: "Agent/[agent name]"; (ii) not conceal or obfuscate that any access, use, or interactions are from an Agent, such as by (a) mimicking human behavior and interaction patterns, or (b) completing or circumventing CAPTCHAs or measures intended to distinguish computer use from humans, (iii) respond truthfully to any question or prompt seeking to determine if interactions are coming from a human or a computer, (iv) not circumvent or otherwise avoid any measure intended to block, limit, modify, or control whether and how Agents access, use, or interact with the Services.
SECTION 15 - TERMINATION
We may terminate this agreement or your access to the Services (or any part thereof) in our sole discretion at any time without notice, and you will remain liable for all amounts due up to and including the date of termination. The following sections will continue to apply following any termination: Intellectual Property, Feedback, Termination, Disclaimer of Warranties, Limitation of Liability, Indemnification, Severability, Waiver; Entire Agreement, Assignment, Dispute Resolution, Privacy Policy, and any other provisions that by their nature should survive termination.
SECTION 16 - DISCLAIMER OF WARRANTIES
The information presented on or through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Services, or by anyone who may be informed of any of its contents.
EXCEPT AS EXPRESSLY STATED BY ZEBRA DOLPHIN, THE SERVICES AND ALL PRODUCTS OFFERED THROUGH THE SERVICES ARE PROVIDED 'AS IS' AND 'AS AVAILABLE' FOR YOUR USE, WITHOUT ANY REPRESENTATION, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
SECTION 17 - LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO CASE SHALL ZEBRA DOLPHIN, OUR PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SERVICE PROVIDERS OR LICENSORS, OR THOSE OF SHOPIFY AND ITS AFFILIATES, BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM YOUR USE OF ANY OF THE SERVICES OR ANY PRODUCTS PROCURED USING THE SERVICES, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICES OR ANY PRODUCT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICES OR ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, EVEN IF ADVISED OF THEIR POSSIBILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ZEBRA DOLPHIN'S MAXIMUM AGGREGATE LIABILITY FOR ANY CLAIMS, LIABILITIES OR DAMAGES ARISING UNDER THESE TERMS SHALL NOT EXCEED THE TOTAL AMOUNT YOU PAID FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM.
SECTION 18 - INDEMNIFICATION
You agree to indemnify, defend and hold harmless Zebra Dolphin, and its affiliates, partners, officers, directors, employees, agents, contractors, licensors, and service providers from any losses, damages, liabilities or claims, including reasonable attorneys' fees, payable to any third party due to or arising out of (1) your breach of these Terms of Service or the documents incorporated by reference, (2) your violation of any law or the rights of a third party, or (3) your access to and use of the Services.
We will notify you of any indemnifiable claim, provided that a failure to promptly notify will not relieve you of your obligations unless you are materially prejudiced. We may control the defense and settlement of such claim at your expense, including choice of counsel, but will not settle any claim requiring non-monetary obligations from you without your consent (not to be unreasonably withheld). You will cooperate in the defense of indemnified claims, including by providing relevant documents.
SECTION 19 - SEVERABILITY
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.
SECTION 20 - WAIVER; ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. These Terms of Service and any policies or operating rules posted by us on this site or in respect to the Service constitutes the entire agreement and understanding between you and us and governs your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service). Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.
SECTION 21 - ASSIGNMENT
You may not delegate, transfer or assign this Agreement or any of your rights or obligations under these Terms without our prior written consent, and any such attempt will be null and void. We may transfer, assign, or delegate these Terms and our rights and obligations without consent or notice to you.
SECTION 22 - DISPUTE RESOLUTION
As detailed in this section, all disputes arising out of, relating to, or in connection with these Terms or Zebra Dolphin (“Disputes”) must be resolved first through an informal dispute resolution process. In the event that process fails, all Disputes will be resolved through binding arbitration.
22.1 Informal Dispute Resolution. Unless otherwise noted in this Section 22, you and Zebra Dolphin agree that if any Dispute arises between us, both parties will first try to resolve it informally before initiating any formal dispute resolution proceeding.
To initiate informal dispute resolution, the initiating party must first send a written description of the Dispute to the other party (“Notice of Dispute”). For any Dispute against Zebra Dolphin that you initiate, you agree to send to Zebra Dolphin at info@zebradolphin.com (a) a written description of the Dispute and (b) the email address(es) associated with your purchase from Zebra Dolphin. The Notice of Dispute must be on an individual basis and provide at least: your name; a description of the nature of the Dispute with sufficient detail for Zebra Dolphin to assess its merits; and the specific relief sought. For any Dispute that Zebra Dolphin initiates, we will send our Notice of Dispute to the email address associated with your purchase if we can reasonably identify such an address.
You and Zebra Dolphin agree, following receipt of the Notice of Dispute, to negotiate in good faith about the Dispute through an informal telephonic conference. That conference shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal conference. If either party is represented by counsel, that party’s counsel may participate in the conference, but the party also must appear at and participate in the conference, unless one party states in writing that the other party need not participate.
If the Dispute is not fully resolved within sixty (60) days after the non-initiating party receives the Notice of Dispute, you and Zebra Dolphin agree to resolve any remaining aspects of the Dispute through the procedures set forth below.
Good faith participation in the above-described informal dispute resolution process is a prerequisite to either party initiating arbitration. The parties agree that any applicable statute of limitations period or other deadlines will be tolled while the parties engage in informal dispute resolution. The parties further agree that whether a complaining party has satisfied these Initial Dispute Resolution procedures is an issue that can be decided by a court as a prerequisite to arbitration.
22.2 Arbitration Agreement. If Informal Dispute Resolution efforts fail, then either party may initiate binding arbitration using the procedures set forth below as the sole means to resolve claims. To initiate an arbitration, you or Zebra Dolphin must file a demand for arbitration with National Arbitration and Mediation (“NAM”). After filing a copy of the demand with NAM, you must also email a copy to info@zebradolphin.com. If Zebra Dolphin is initiating arbitration, it will serve a copy of the demand to the email address associated with your Zebra Dolphin account. You and Zebra Dolphin agree that all Disputes shall be resolved exclusively through binding arbitration in accordance with this Section 16 (the “Arbitration Agreement”). This includes claims that arose, were identified, or involve facts occurring before the existence of this Arbitration Agreement as well as claims that may arise after the termination of this Arbitration Agreement. This Arbitration Agreement is governed by the Federal Arbitration Act ("FAA") and evidences a transaction involving interstate commerce. You and Zebra Dolphin expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Arbitration Agreement.
Except as set forth in Section 16.5, the arbitrator, and not any court, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Terms and the Arbitration Agreement, including, but not limited to any claim that all or any part of these Terms or the Arbitration Agreement are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of administrative or arbitrator fees. The arbitrator may grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the arbitration provider rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party's bad faith failure to comply with this Section.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU AND ZEBRA DOLPHIN BY AGREEING TO THIS ARBITRATION PROCEDURE ARE EACH IN EFFECT WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
22.3. Arbitration Location. Subject to Section 22.6, if applicable, if you are a resident of the United States, and initiate arbitration, such arbitration will take place in the County where you reside, or if no NAM arbitrator is available in that County, then at the closest NAM arbitration location available in the state. Where Zebra Dolphin initiates arbitration, and for residents in Canada (and anywhere else outside the United States), arbitration shall be initiated in the County of New York, State of New York, United States of America, unless you and Zebra Dolphin otherwise agree or unless the designated arbitrator determines that such venue would be unreasonably burdensome to any party, in which case the arbitrator shall have the discretion to select another venue despite either party’s initial selection. For any arbitration conducted in New York, You and Zebra Dolphin agree to submit to the personal jurisdiction of any federal or state court in New York County, New York, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and in connection with any such proceeding, further agree to accept service of process by U.S. mail and hereby waive any and all jurisdictional and venue defenses otherwise available.
22.4 Class Action Waiver. You and Zebra Dolphin acknowledge and agree that, to the maximum extent allowed by law, and except as otherwise set out in this Section 22.4 and Section 22.6 below relating to batching, any arbitration shall be conducted in an individual capacity only and not as a class or other representative action, and the arbitrator may award relief only in favor of the individual party seeking relief; notwithstanding this acknowledgement and agreement, you agree that any arbitration involving you may proceed on a consolidated basis if either party provides its consent to consolidate in writing.
With the exception of this Section 22.4 and Section 22.6’s Batch Arbitration provision, if any part of this Arbitration Agreement is deemed to be invalid, unenforceable or illegal, then the balance of this Arbitration Agreement shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, or illegal, provision(s) were not contained herein. If, however, this Section 22.4 or Section 22.6’s Batch Arbitration provision is found to be invalid, unenforceable, or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor Zebra Dolphin shall be entitled to arbitrate their Dispute. Nothing in this Section prevents you or Zebra Dolphin from agreeing to participate in a class-wide settlement of claims.
22.5 Exceptions to Arbitration. Notwithstanding the foregoing, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also elect to have disputes or claims resolved in a small claims court that are within the scope of that court’s jurisdiction regardless of what forum the filing party initially chose. If a party has already submitted an arbitration demand, the other party can inform the arbitral forum that it chooses to have the Dispute heard in small claims court and the arbitral forum will close the arbitration and the Dispute will be heard in the appropriate small claims court. Either party may also seek a declaratory judgment or similar relief in court regarding whether a party’s claims are time-barred, may be brought in small claims court, or a complaining party has satisfied the Initial Dispute Resolution procedures. Seeking such relief does not waive a party’s right to arbitration, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action.
22.6 Arbitration Rules. The arbitration will be administered by NAM and conducted before a sole arbitrator in accordance with NAM rules, including, as applicable, NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer, and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at www.namadr.com.
The arbitrator shall apply New York law consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law.
If the amount in controversy is $10,000 or less and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and Zebra Dolphin submit to the arbitrator, unless the parties agree otherwise. If the amount in controversy is more than $10,000 or seeks declaratory or injunctive relief, either party may request to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.
Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator can allow the filing of dispositive motions. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
In the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM against Zebra Dolphin (“Mass Filing”), the parties agree (i) to administer the Mass Filing in batches of 100 demands per batch (with any final batch consisting of the remaining demands) (ii) to designate one arbitrator for each batch; and (iii) provide for the resolution of each batch on a consolidated basis with one set of filing and administrative fees due per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award, which will provide for any and all relief to which the arbitrator determines each individual party is entitled, (iv) that the first batch (determined based on case number) will proceed alone, followed by the mediation process described in the following paragraph, and (v) that should that mediation process not be successful but the parties continue with the arbitration process, all remaining batches shall proceed simultaneously. You agree to cooperate in good faith with Zebra Dolphin and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by NAM. If your demand for arbitration is included in the Mass Filing, your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled.
The results of the first batch of demands will be given to a NAM mediator selected from an initially proposed group of 5 mediators, with Zebra Dolphin and the remaining claimants’ counsel being able to strike one mediator each and then rank the remaining mediators and the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands in the Mass Filing. After the results are provided to the mediator, Zebra Dolphin, the mediator and the remaining claimants will have 90 days (the “Mediation Period”) to agree on a resolution or methodology for resolving the outstanding demands. If they are unable to do so, either Zebra Dolphin or any remaining claimant may opt out of the arbitration process and have the demand(s) proceed in court. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period. If neither Zebra Dolphin nor the remaining claimants opt out and they cannot agree to a methodology for resolving the remaining demands through further arbitration, the arbitrations will continue with the batching process with all remaining batches being administered simultaneously. Opt out of arbitration under this section shall not be construed as opt out of Section 16.4, “Class Action Waiver.”
The parties agree that this Batch Arbitration provision is integral to the Arbitration Agreement insofar as it applies to a Mass Filing. If this Batch Arbitration provision is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor Zebra Dolphin shall be entitled to arbitrate any claim that is a part of the Mass Filing.
22.7 If you can demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Zebra Dolphin will pay any filing and hearing fees in excess of $250 that the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or asserted in bad faith, in which case arbitration fees (including attorneys’ fees) may be imposed upon you consistent with the Arbitrator’s Rules and the standard for sanctions set forth in Federal Rule of Civil Procedure 11. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
The parties agree that NAM can reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Arbitration Agreement while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
22.8 Opt Out. You can opt-out of the Arbitration Agreement and Class Action Waiver by notifying Zebra Dolphin in writing no later than thirty (30) days of your purchase. Your notice must include your name and address, and the email address you used to make your purchase, and an unequivocal statement that you want to opt-out of this arbitration agreement. You must send your opt-out notice to info@zebradolphin.com. If you do not opt out, you shall be bound to arbitrate disputes in accordance with the terms of the Arbitration Agreement and Class Action Waiver. If you opt out of the Arbitration Agreement or Class Action Waiver, you or we may exercise your or our right to a trial by jury or judge, as permitted by applicable law. If you opt-out of the Arbitration Agreement or Class Action Waiver, Zebra Dolphin also will not be bound by them.
SECTION 23 - HEADINGS
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
SECTION 24 - CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time on this page. We reserve the right, in our sole discretion, to update, change, or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. We will notify you of any material changes to these Terms in accordance with applicable law, and such changes will be effective on the date specified in the notice. Your continued use of or access to the Services following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
SECTION 25 - CONTACT INFORMATION
For questions regarding these Terms of Service, contact Zebra Dolphin customer support at:
Flaviar, Inc. dba Zebra Dolphin
info@zebradolphin.com
244 Fifth Avenue, Suite F247
New York, NY 10001
