Welcome, and thank you for your interest in COCO (Cyan Robotics, Inc.) (“COCO,” “we,” or “us”) and our website at www.cocodelivery.com, along with our related mobile applications and delivery and other services, provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and COCO regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING COCO’S PRIVACY POLICY (TOGETHER, THESE “TERMS”).
If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Service. YOUR USE OF THE SERVICE, AND COCO’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY COCO AND BY YOU TO BE BOUND BY THESE TERMS.
Arbitration NOTICE. Except for certain kinds of disputes described in Section 14, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND COCO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this agreement (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 14A.)
1. COCO Service Overview.
The Services provide on-demand delivery for restaurants and other businesses (collectively, “Merchants”) to deliver food, beverage and other related products (“Products”) to their customers. When a delivery order is placed through the Merchant’s ordering channels (e.g., DoorDash, Grubhub, UberEats, etc., collectively, the “Ordering Platforms”), the Merchant may pass the request (each, a “Merchant Order”) to COCO. In addition, you may be able to order Products from Merchants directly through the Services (each a “Coco Order” and collectively with the Merchant Orders an “Order”). Orders will be fulfilled by the Merchant and will either be delivered via one of Coco’s robots (each, a “Coco robot” and a “Coco Delivery”) and travel to the delivery address designated by you when placing the Order (your “Designated Address”) or a contractor (“Courier”) will pick up the order from the Merchant and deliver the Order to the Designated Address (each a “Courier Delivery” and together with the Coco Delivery, each such trip being a “Delivery” and collectively “Deliveries”). Although you may receive Deliveries by Coco robots, COCO is not a Merchant and does not sell any of the Products contained in your Order. COCO is not a party to the transaction between you and the Merchant. For all Orders you acknowledge and agree that Merchants act independently of COCO and as such, COCO is not liable or responsible for Merchant’s compliance with certain laws and regulations applicable to each such Merchant and the Products making up any Order, including, but not limited to alcohol, food safety and preparation laws and regulations. COCO does not investigate or verify any of the claims or statements, including, but not limited to, menus or descriptions of any Merchants and you are advised to contact the Merchant directly if you have any questions regarding the same. If you are a Merchant, any access or use of the Services by you as a Merchant will be subject to separate terms and conditions between you and COCO. Further, when a Delivery is made by a Courier, the Courier shall be solely responsible for, and you acknowledge and agree that COCO shall not be liable or responsible for the delivery services provided to you by any Courier, including, but not limited to, any acts, omissions, errors or misrepresentations made by any Courier.
2. Orders and Delivery
A. Orders.
You or the Merchant will provide COCO with the information you have provided for the Order, including your Designated Address and contact information (including, without limitation as applicable, your phone number and email address). PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE MERCHANT AND THE ORDERING PLATFORMS ASSOCIATED WITH YOUR ORDER IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTIES, AND COCO DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTIES IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS.
B. Coco Delivery.
For each Coco Delivery, upon arrival at your Designated Address, the Service will notify you of the Coco robot’s arrival via text message or other notification, including push notification. You must then meet the Coco robot at the Designated Address and pick up the contents of your Order by unlocking the Coco and retrieving your items according to any instructions provided by us (a “Pickup”). We may try to contact you by phone or text message if you have not initiated the Pickup within a certain period of time after the Coco robot has arrived at the Designated Address. If we are unable to complete a Delivery after the Coco robot has arrived at the Designated Address, including, without limitation, if you fail to meet the Coco robot for Pickup within a reasonable time period, then the Service may prompt the Coco robot to leave and we may cancel the Order. You agree that COCO holds no title to or acquires no ownership interest in any Products that are delivered by a Coco robot.
C. Courier Delivery.
Upon the Courier’s arrival at your Designated Address, the Service will notify you of the arrival via text message or push notification. You may then meet the Courier at the Designated Address and/or have the Courier leave the items ordered at the Designated Address per your instructions communicated via the Services You agree that neither the Courier nor COCO holds title to or acquires any ownership interest in any items that are delivered by a Courier.
3. General Payment Terms.
All payments for Merchant Orders will be processed via the Ordering Platforms. All payments for Coco Orders will be processed via Coco’s third-party payment processor. Unless otherwise determined, these payments are final and non-refundable. For Coco Orders, COCO will charge, and you authorize COCO to charge, the payment method you specify at the time of purchase.
4. Refunds.
For Merchant Orders, you acknowledge that COCO is not responsible for full or partial refunds on purchases of Products or related order fulfillment charges including any associated delivery-related charges charged by the Merchant. Addressing customer requests for refunds on purchases of Products will be the sole responsibility of the Merchant and/or the Ordering Platform at which the Order was placed in accordance with such third party’s refund policies. For Coco Orders, COCO, in its sole discretion, may offer credits or refunds on a case-by-case basis including, by way of example, in the event of an error with your order or in the amounts you were charge.
5. Licenses
A. Limited License.
Subject to your complete and ongoing compliance with these Terms, COCO grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service.
B. License Restrictions.
Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce or distribute the Service; (b) make modifications to the Service; (c) reverse engineer the Service; or (d) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
C. Feedback.
If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant COCO an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service or Materials (as defined below) and create other products and services.
D. Ownership; Proprietary Rights.
The Service is owned and operated by COCO. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service and Coco robots (“Materials”) provided by COCO are protected by intellectual property and other laws. All Materials included in the Service are the property of COCO or its third-party licensors. Except as expressly authorized by COCO, you may not make use of the Materials. COCO reserves all rights to the Materials not granted expressly in these Terms.
6. Third-Party Terms
A. Third-Party Services and Linked Websites.
By using the Services, you acknowledge and agree that your information may be exported to third-party services, including Merchant’s Ordering Platforms, and may be provided to COCO from third party services. By using the Services, you agree that COCO, when receiving such information, may transfer that information to the applicable third-party service, including Merchant Ordering Platforms. Third-party services are not under COCO’s control, and, to the fullest extent permitted by law, COCO is not responsible for any third-party service’ use of your information, whether provided by COCO or otherwise. Additionally, the Service may also contain links to third-party websites. Linked websites are not under COCO’s control, and COCO is not responsible
for their content.
B. Third-Party Software.
The Service may include or incorporate third-party software components. By using the Services, you hereby acknowledge and consent that COCO may share such information and data with any third party with whom COCO has a contractual relationship to provide the requested product, service or functionality.
7. Communications
A. Text Messaging.
COCO, Merchants and Couriers, may send you text (SMS) messages at the phone number you provided when placing your Order. You acknowledge and agree that if COCO obtains your contact information as part of an Order received from an Ordering Platform, COCO may rely upon the Order Platform’s sharing of such information as your approval of COCO’s use of such information. These messages may include operational messages about your use of the Service. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF ALL MESSAGES FROM COCO, YOU CAN EMAIL SUPPORT@COCODELIVERY.COM OR TEXT THE WORD “STOPALL” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive text messages for a short period while we process your request, including messages confirming the receipt of your opt-out request.
B. Push Notifications.
When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s “settings” page.
C. Email.
We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
8. Prohibited Conduct.
BY USING THE SERVICE, YOU AGREE NOT TO:
(I) use the Service for any illegal purpose or in violation of any local, state, national, or international law; use the Service to harass, threaten, demean, embarrass, or otherwise harm another person; (II) interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law; (III) interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) collecting personal information about another user or third party without consent; or (c) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service; (IV) interfere with the operation of the Coco robots or with any Delivery, including by: (a) disabling or obstructing any Coco robot or its sensors; (b) vandalizing or otherwise intentionally causing damage to a Coco robot or its sensors; (c) forcibly unlocking any Coco to gain access to any Product contained in the Coco robot; (d) intentionally affecting the functions of a Coco robot or its sensors by using electrical equipment or devices that generate ultrasonic waves or other similar means; (e) otherwise interacting with a Coco robot beyond what is necessary to retrieve the Products that you purchased under an Order as permitted under these Terms; or (f) tampering or retrieving any Products that may be contained in a Coco robot that was not purchased by you; (V) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, or paying for an Order with a payment card you are not authorized to use; (VI) compile, directly or indirectly, any content displayed through the Services except for your personal, noncommercial use; (VII) use the Services for any commercial or other purposes that are not expressly permitted by this Agreement, including, without limitation, to build a competing service; (VIII) sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 5) or any right or ability to view, access, or use any Materials; or (IX) attempt to do any of the acts described in this Section 8 or assist or permit any person in engaging in any of the acts described in this Section 8.
9. Modification of Terms.
We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 9, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
10. Term, Termination and Modification of the Service
A. Term.
These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 10 (B).
B. Termination.
If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, COCO may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at support@cocodelivery.com or, if this functionality is available to you, by deleting your account on the Service.
C. Effect of Termination.
Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you must pay COCO any unpaid amount that was due prior to termination; and (c) all payment obligations accrued prior to termination and Sections 4, 5.3, 6, 9, 10(c), 11, 12, 13,
14 and 15 will survive.
D. Modification of the Service.
COCO reserves the right to modify or discontinue the Service or portions thereof at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. COCO will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
11. Indemnity.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify COCO, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, “COCO Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any property or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
12. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. COCO DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS, CONTENT, AND PRODUCTS AVAILABLE THROUGH THE SERVICE, INCLUDING: (1) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (2) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. COCO DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH OR USED TO PERFORM THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND COCO DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. COCO DOES NOT WARRANT THAT ANY PRODUCTS AS SHOWN ON THE SERVICE AT ANY POINT IN TIME WILL BE AVAILABLE AT ANY OTHER TIME OR AT THE SAME PRICE. YOU ACKNOWLEDGE AND AGREE THAT: (A) WE NEITHER GUARANTEE THE QUALITY, DURABILITY, SUITABILITY, OR AVAILABILITY OF ANY PRODUCTS AVAILABLE FOR PRUCHASE VIA THE SERVICES NOR GUARANTEE THE QUALITY, SUITABILITY, SAFETY, OR AVAILABILITY OF ANY COCO ROBOTBOT; AND (B) WHILE COCO REVIEWS REQUESTS TO BECOME MERCHANTS BEFORE ACCEPTING MERCHANTS, COCO DOES NOT GUARANTEE THAT ANY MERCHANT WILL ABIDE BY ANY POLICIES, PROCEDURES AND INDUSTRY STANDARDS IN CONNECTION WITH PREPARING, LABELING, STORING, PACKING, AND DELIVERING ANY PRODUCTS ORDERED BY YOU THROUGH THE SERVICE. AS A RESULT, YOU MUST CAREFULLY LOOK AT ALL MENUS, PACKAGING LABELS, NOTICES AND RELATED INFORMATION ON ANY ITEM ORDERED THROUGH THE SERVICE BEFORE CONSUMING OR OTHERWISE USING SUCH ITEM. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, COCO SPECIFICALLY DISCLAIMS AND YOU RELEASE COCO FROM ANY LOSS OR DAMAGES INCURRED BY YOU ARISING FROM OR RELATED TO DELAYS IN DELIVERY TIME OR FAILURE TO DELIVER DUE TO ANY ERRORS OR MALFUNCTIONING OF ANY COCO ROBOT.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR COCO ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF COCO ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER USER OF THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PERSON OR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. COCO does not disclaim any warranty or other right that COCO is prohibited from disclaiming under applicable law.
13. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL COCO ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, ANY TRANSACTIONS OR RELATIONSHIP WITH ANY THIRD PARTY WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY COCO ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 13 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF COCO ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (1) THE AMOUNT YOU HAVE PAID TO COCO FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (2) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. Dispute Resolution and Arbitration
A. Generally.
In the interest of resolving disputes between you and COCO in the most expedient and cost-effective manner, and except as described in Section 14(b) and 14(c), you and COCO agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COCO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
B. Exceptions.
Despite the provisions of Section 14(a) nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
C. Opt-Out.
If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 14 within 30 days after the date that you agree to these Terms by sending a letter to COCO (Cyan Robotics, Inc.), Attention: Legal Department – Arbitration Opt-Out, [Address], United States that specifies: your full legal name, your primary email address or phone number you use to place Orders, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once COCO receives your Opt-Out Notice, this Section 15 will be void and any action arising out of these Terms will be resolved as set forth in Section 15(B). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
D. Arbitrator.
Any arbitration between you and COCO will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting COCO. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
E. Notice of Arbitration; Process.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). COCO’s address for Notice is: COCO (Cyan Robotics, Inc.), [Address], United States. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or COCO may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or COCO must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by COCO in settlement of the dispute prior to the award, COCO will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
F. Fees.
If you commence arbitration in accordance with these Terms, COCO will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse COCO for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
G. No Class Actions.
YOU AND COCO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and COCO agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
H. Modifications to this Arbitration Provision.
If COCO makes any future change to this arbitration provision, other than a change to COCO’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to COCO’s address for Notice of Arbitration, in which case your account with COCO will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
I. Enforceability.
If Section 14(G) or the entirety of this Section 14 is found to be unenforceable, or if COCO receives an Opt-Out Notice from you, then the entirety of this Section 14 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 15(B) will govern any action arising out of or related to these Terms.
15. Miscellaneous
A. General Terms.
These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and COCO regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
B. Governing Law.
These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and COCO submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
C. Privacy Policy.
Please read the COCO Privacy Policy www.cocodelivery.com/privacy carefully for information relating to our collection, use, storage, and disclosure of your personal information. The COCO Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
D. Additional Terms.
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
E. Consent to Electronic Communications.
By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
F. Contact Information.
The Service is offered by COCO (Cyan Robotics, Inc.), located at [address], United States. You may contact us by sending correspondence to that address or by emailing us at support@cocodelivery.com.
G. Notice to California Residents.
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
H. No Support.
We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
I. International Use.
The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
16. Notice Regarding Apple.
This Section 16 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and COCO only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.