EFFECTIVE DATE: APRIL 1, 2024

Welcome to BarkAir!

Please read these BarkAir Terms of Service (the “Terms”) carefully. These Terms apply when you access, use or visit the BarkAir website located at dogsflyfirst.com (the “Site”), and the services, content and other materials made available through the Site and the App (these services, content, and materials, together with the Site and the App, are referred to in these Terms as the “BarkAir Service”). We prepared these Terms to help explain the terms that apply to your use of the BarkAir Service. Offerings and services provided through the BarkAir Service may be subject to additional terms, conditions, guidelines and rules, as described in Section 1 below.

BY USING THE BARKAIR SERVICE, YOU (THE HUMAN) AGREE TO BE BOUND BY THESE TERMS AND YOU REPRESENT AND WARRANT THAT YOU HAVE READ THESE TERMS, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM.

NOTICE REGARDING ARBITRATION AND DISPUTE RESOLUTION: YOU AND BARKAIR AGREE THAT ANY FUTURE DISPUTES BETWEEN YOU AND BARKAIR WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, UNLESS YOU OPT-OUT IN ACCORDANCE WITH SECTION 14.  UNLESS YOU OPT-OUT OF ARBITRATION, YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, CLASS ARBITRATION, OR REPRESENTATIVE PROCEEDING, AND YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS. IF YOU WISH TO OPT OUT OF ARBITRATION, FOLLOW THE OPT-OUT PROCEDURE SPECIFIED IN SECTION 14 BELOW.

1. Description of the BarkAir Service; Additional Terms. BarkAir is owned and operated by Bark Services, Inc. (referred to in these terms as “BarkAir,” “Company,” “We,” or “Us”). BarkAir is a unique airline offering air travel for dogs of all breeds and sizes and their human companions. In fact, subject to limited behavioral restrictions, oversized dogs, dogs who hate crates, snub nose dogs, and all the other dogs out there who have never had an opportunity to fly, are welcome on BarkAir. The BarkAir Service is the means through with you will be able to obtain information about BarkAir and book flights on BarkAir, and these Terms are applicable to your use of the BarkAir Service for that purpose. The terms that are applicable to ticketing and you and your dog’s flights on BarkAir are provided separately in the Operator Participant Agreement and Conditions of Carriage, available by contacting legal@dogsflyfirst.com. In addition, please review our FAQ for more information regarding BarkAir’s service offerings and related policies.
2. Privacy Policy. In connection with your use of the BarkAir Service, please review our Privacy Policy, located at https://bark.co/pages/privacy-policy  (the “Privacy Policy”), to understand how we use information we collect from you when you access, visit, or use the BarkAir Service. The Privacy Policy is part of and is governed by these Terms and by agreeing to these Terms, you agree to be bound by the terms of the Privacy Policy and agree that we may use information collected from you in accordance with its terms. 
3. Updates to these Terms. We may change, modify or amend these Terms from time to time. If you do not agree with the proposed changes, you should discontinue your use of the BarkAir Service prior to the time the new Terms take effect. If you continue using the BarkAir Service after the new Terms take effect, you will be bound by the modified Terms.
4. Affirmative Representations Regarding Your Use of the Service. When you use the BarkAir Service, you represent that: (a) the information you submit to the BarkAir Service is truthful and accurate; (b) your use of the BarkAir Service does not violate any applicable laws or regulations; and (c) you are at least eighteen (18) years of (or the age of majority in your jurisdiction, if older), and otherwise have legal capacity to legally enter into these Terms.
5. Account Creation. You may access the BarkAir Service without creating a user account. When purchasing BarkAir airline tickets, you may create a user account (a “User Account”) and related log-in credentials. By providing BarkAir with the requested information in connection with the creation of your User Account, you represent and warrant that the applicable information is true and accurate. You shall inform BarkAir if any applicable information changes following the time you create your User Account. You are responsible for keeping your account details secure. BarkAir assumes no responsibility or liability for any loss that you may sustain due to the compromise of your User Account or related log-in credentials. In the event you believe your User Account has been compromised, please contact BarkAir customer support immediately at happy@dogsflyfirst.com.
6. Fees and Payments. If you book a flight through the BarkAir Service, applicable fares, fees, and taxes for the flight will be specified at the time you make the booking (the “Fees”). You must provide a valid payment method to pay for all applicable Fees. BarkAir will charge applicable Fees to any valid payment method that you authorize (“Authorized Payment Method”). Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments will be in U.S. dollars. All Fees payable by you to BarkAir under these Terms will be paid free and clear of any deductions or withholdings whatsoever. Other than taxes charged by BarkAir to you and remitted to the appropriate tax authorities on your behalf, any deductions or withholdings that are required by law will be borne by you and paid separately to the relevant taxation authority. BarkAir will be entitled to charge the full amount of Fees stipulated under these Terms to your Authorized Payment Method.
7. Prohibited Uses. In connection with your use of the BarkAir Service, you agree and represent that:
   • You will not copy, transmit, distribute, sell, resell, license, decompile, reverse engineer, disassemble, modify, publish, create derivative works from, perform, display, incorporate into another website, or in any other way exploit any part of the BarkAir Service or any derivative works thereof, in whole or in part for commercial or non-commercial purposes;
   • You will not frame or display the BarkAir Service (or any portion thereof) as part of any other website or any other work of authorship without prior written permission;
   • You will not violate any law, contract, intellectual property, or other third-party rights, and will not engage in any fraudulent or illegal activity, including illegal gambling, money laundering, or fraud;
   • You will not publish or make available any pornographic or inappropriate material, racist content, or use the BarkAir Service for any other use that would contradict or violate these Terms or applicable law;
   • You will not impersonate any other person or entity, provide false or misleading identification or address information, or invade or violate the privacy, personal, publicity, intellectual property or proprietary rights, of any person or entity;
   • You will not engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from the BarkAir Service, or use any means to scrape or crawl any part of the BarkAir Service; and
   • You will not access or use the BarkAir Service for purposes of obtaining information to build a similar or competitive website, application or service.
8. Our Management of the Service; User Misconduct
   • Our Right to Manage the Service. We reserve the right, but do not undertake the obligation to: (i) monitor or review the BarkAir Service for violations of these Terms and for compliance with our policies; (ii) report to law enforcement authorities and/or take legal action against anyone who violates these Terms; (iii) refuse, restrict access to or the availability of, or remove, delete, edit or disable (to the extent technologically feasible) the BarkAir Service or any portion thereof; (iv) manage the BarkAir Service in a manner designed to protect our, our users’, and third parties’ rights and property or to facilitate the proper functioning of the BarkAir Service; and/or (v) terminate or block your use of the BarkAir Service for violating these Terms.
   • Our Right to Terminate Users. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OR ANY REMEDY WE MAY HAVE UNDER LAW OR IN EQUITY, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION, AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE BARKAIR SERVICE TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THESE TERMS, OR OF ANY APPLICABLE LAW OR REGULATION.
9. Third Party Sites. The BarkAir Service may contain links to websites operated by third parties, such as third party social media services (“Third Party Sites”); however, we do not own or operate the Third Party Sites, and we have not reviewed, and cannot review, all of the material, including products or services, made available through Third Party Sites. The availability of these links on the BarkAir Service does not represent, warrant or imply that we endorse any Third Party Sites or any materials, opinions, products or services available on them. Third party materials accessed through or used by means of the Third Party Sites may also be protected by copyright and other intellectual property laws. THESE TERMS DO NOT APPLY TO THIRD PARTY SITES. BEFORE VISITING A THIRD PARTY SITE THROUGH LINKS OR OTHER MEANS PROVIDED ON OR THROUGH THE BARKAIR SERVICE, YOU SHOULD REVIEW THE THIRD PARTY SITE’S TERMS AND CONDITIONS AND PRIVACY POLICY, AND INFORM YOURSELF OF THE REGULATIONS, POLICIES AND PRACTICES OF THESE THIRD PARTY SITES.
10. Ownership of the BarkAir Service; Limited License. BarkAir shall own and retain all right, title and interest in and to the BarkAir Service, and all intellectual property rights arising therefrom or related thereto. BarkAir shall grant, and hereby grants to you, a non-exclusive, non-transferable, and limited license, subject to these Terms, to access and use the BarkAir Service for the purposes set forth herein and for such other approved purposes as permitted by BarkAir from time to time. Any other use of the BarkAir Service is expressly prohibited. Except for the foregoing express, limited license, all other rights in the BarkAir Service are reserved by BarkAir.
11. Warranty Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN OR AS MAY NOT BE LIMITED BY LAW, THE BARKAIR SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, BARKAIR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF ACCURACY, COMPLETENESS, NONINFRINGEMENT, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMMERCIAL UTILITY, SCOPE, OR TITLE WITH RESPECT THERETO. BARKAIR DOES NOT GUARANTEE ANY RESULTS OR OUTCOME IN CONNECTION WITH THE USE OF THE BARKAIR SERVICE. BARKAIR CANNOT AND DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE BARKAIR SERVICE. WE ASSUME NO RESPONSIBILITY WHATSOEVER AND SHALL NOT BE LIABLE FOR THE USE OF THE BARKAIR SERVICE, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN. BARKAIR SHALL NOT BE LIABLE FOR ANY FAILURE OF THE BARKAIR SERVICE ARISING OR RESULTING FROM ACTS OR EVENTS BEYOND THE CONTROL OF BARKAIR.
12. Indemnification. You will defend, indemnify, and hold harmless BarkAir and each of BarkAir’s affiliates, the successors and assigns of each of the foregoing, the agents of each of the foregoing, and the officers, directors and employees of each of the foregoing, from and against any and all claims, demands, lawsuits or proceedings asserted or commenced by a third party (each a “Claim”), and all damages, liabilities, costs and expenses arising therefrom, including reasonable outside counsel fees and costs, to the extent the Claim (i) is based on allegations that, if true, would constitute a breach by you of these Terms; or (ii) arises from any negligent act or omission or willful misconduct by you. You will not be required to indemnify and hold us or any other indemnified party harmless from and against any applicable claims or demands to the extent resulting from BarkAir’s own negligent conduct.
13. Legal Disputes and Arbitration Agreement

    Please Read This Following Clause Carefully – It May Significantly Affect Your Legal Rights, Including Your Right to File a Lawsuit in Court

    • Initial Dispute Resolution. BarkAir can be contacted at legal@bark.co to address any concerns you may have regarding these Terms or the BarkAir Service. Most concerns may be quickly resolved in this manner. Each of you and BarkAir agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
    • Agreement to Binding Arbitration. If you and BarkAir do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 14(a) above, then either party may initiate binding arbitration. All claims arising out of or relating to these Terms (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the BarkAir Service shall be finally settled by binding arbitration administered on a confidential basis by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms shall be subject to the Federal Arbitration Act.
      
      Arbitration proceedings will be held in New York County, New York. Additionally, arbitrations may be conducted telephonically or via video conference for disputes alleging damages less than $10,000.00. You and BarkAir agree that the state or federal courts of the State of New York and the United States sitting in New York County, New York have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
      
      The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
      
      The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
    • Class Action and Class Arbitration Waiver. You and BarkAir each further agree that any court action or arbitration shall be conducted in our respective individual capacities only and not as a class action or other representative action, and you and BarkAir each expressly waive our respective right to file a class action, class arbitration, or seek relief on a class basis. If any court or arbitrator determines that the class action and class arbitration waiver set forth in this Section is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 14(b) above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
    • Exception - Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
    • Exception – California Private Attorneys General Act (PAGA) Action. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a court of law for a claim arising under California’s Private Attorneys General Act.
    • Exception – Intellectual Property Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may bring an individual (non-class) action in a court of competent jurisdiction (which jurisdiction shall be exclusive), with respect to any dispute relating to a party’s intellectual property rights where the only relief sought is for injunctive or equitable relief for the alleged unlawful use of intellectual property.
    • Arbitration Fees. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250.00), BarkAir will pay the additional cost. If BarkAir is required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and BarkAir will make arrangements to pay all necessary fees directly to JAMS. BarkAir will also be responsible for paying all other fees or amounts payable to JAMS with respect to the arbitration, excluding costs incurred by you for legal counsel, travel and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS.
    • 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 14(b) and 14(c) above by sending written notice of your decision to opt-out by emailing us at legal@bark.co. The notice must be sent within thirty (30) days of the date you create a User Account, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those Sections. If you opt-out of these arbitration provisions, BarkAir also will not be bound by these arbitration provisions.
    • Consolidation of Arbitration Claims. Although you and BarkAir have agreed that no disputes may proceed as part of a class arbitration, the JAMS mediator may consolidate an individual arbitration filed pursuant to these Terms with other individual arbitration(s), at the request of either party, if the arbitrations share common issues of law or fact. The consolidation issue shall be determined by the arbitrator appointed for the earliest filed application. Any disputes over whether an arbitration claim should be consolidated with others, or which arbitrator shall hear any consolidated matter, shall be resolved by JAMS. If multiple individual arbitration proceedings are consolidated, JAMS and the arbitrator may treat the consolidated proceedings as one arbitration for purposes of assessing JAMS fees and the arbitrator’s compensation, and you consent and agree not to object to any reduction or elimination of JAMS fees or arbitrator compensation.
    • Governing Law; Exclusive Venue for Litigation. The laws of the State of New York will govern these Terms without giving effect to any principles of conflicts of laws and excluding the United Nations Convention on the International Sale of Goods. In addition, to the extent that the arbitration provisions set forth in Section 14(b) do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in New York County, New York (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in New York County, New York for any litigation other than small claims court actions. In the event of litigation relating to these Terms or the BarkAir Service, the parties agree to waive, to the maximum extent permitted by law, any right to a jury trial.
14. Independent Contractor. In entering into these Terms, BarkAir and you have and will have the status of independent contractors. Accordingly, there is no joint venture, partnership, agency or fiduciary relationship existing between the parties, and the parties do not intend to create any such relationship by these Terms.
15. Assignment. BarkAir may assign its rights under these Terms in whole or in part to any person or entity, and such rights may be assigned by any assignee thereof. Any purported assignment by you will be null and void. These Terms will be binding upon and inure to the benefit of the parties to these Terms and their heirs, executors, administrators, legal representatives, and, where permitted, successors and assigns.
16. Limitation of Liability. EXCEPT AS MAY NOT BE LIMITED BY LAW, IN NO EVENT SHALL BARKAIR BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF BARKAIR OR THE BARKAIR SERVICE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, BARKAIR’S LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, BARKAIR, OR THE BARKAIR SERVICE, WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY, SHALL NOT EXCEED $50.
17. Notice to California Users. Under California Civil Code Section 1789.3, users located in California are entitled to the following consumer rights notice: If a user has a question or complaint regarding the Service, please send an email to legal@bark.co. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at +1 (916) 445-1254 or +1 (800) 952-5210.
18. Independent Contractors. Nothing in these Terms shall be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between us and any user.
19. Non-Waiver. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of the applicable right or provision.
20. Severability. These Terms operate to the fullest extent permissible by law. If any provision or part of a provision of these Terms is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
21. No Modifications by Our Employees. If any of our employees offers to modify the terms of these Terms, he or she is not acting as an agent for us or speaking on our behalf. You may not rely, and should not act in reliance on, any statement or communication from our employees or anyone else purporting to act on our behalf.
22. Levity. Certain portions of this Agreement relating to human use of a service built for the enjoyment of dogs are included for the purposes of levity and, while very important from a culture perspective, are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.
23. Contact Information. If you have any questions or concerns about these Terms, BarkAir, or the BarkAir Service, you may contact us at legal@bark.co.