Cyan Terms of Service
Last Updated: 23 November 2020
Welcome, and thank you for your interest in Cyan Robotics, Inc. (“Cyan,” “we,” or “us”) and our website at www.cyanbot.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 Cyan regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
Arbitration NOTICE. Except for certain kinds of disputes described in Section 15, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND CYAN 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 15.)
- Cyan Service Overview. Through the Service, you may order certain grocery and other household items (each, a “Retail Item”) for delivery to an address you designate in the Service (your “Designated Address”). All Retail Items are stored by Cyan or one or more individuals or businesses that are part of Cyan’s network of hosts (each, a ”Host”), and all deliveries of Retail Items will be made by one or more of Cyan’s delivery robots (each, a “CyanBot”). After you order any Retail Item through the Service, Cyan or one or more Hosts will equip a CyanBot with the ordered Retail Item, and the equipped CyanBot will be prompted through the Service to travel to your Designated Address. As a user of the Service, you may also request to become a Host; Hosts store Retail Items and are responsible for equipping CyanBots with ordered Retail Items in accordance with Cyan’s policies and procedures. Any access and use of the Service by you as a Host will be subject to separate terms and conditions between you and Cyan.
- Eligibility. You must be at least 18-years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (1) you are at least 18-years old; (2) you have not previously been suspended or removed from the Service; and (3) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that she or he has the authority to bind you to these Terms and you agree to be bound by these Terms.
- Orders and Delivery
- Orders. To access certain features of the Service, you may be required to register for an account. When you register for an account or place an order for any Retail Item on the Service (“Order”), you may be required to provide us with some information about yourself, such as your name, email address, phone number, Designated Address, or other contact information. You agree that the information you provide to us in association with any Order is accurate and that you will keep it accurate and up to date for us to process and deliver the Order. If you are placing an Order for or on behalf of an entity or another person, you represent and warrant to us that you have the authority or permission from that entity or person to place the Order, including disclosing their phone number or Designated Address to the Service. We reserve the right to decline or cancel an Order at any time, for any or no reason. If we cancel an Order after you have paid for the Order, we will notify you of the cancellation via our chat feature on the Service or by sending you an email or text message to the email address or phone number that is associated with your account on the Service or that you provided to us when placing your Order and may issue a refund in accordance with Section 4.4.
- Delivery. After you place an Order and the CyanBot is equipped with your ordered Retail Items, then the Service will prompt the CyanBot to travel to your Designated Address in the Order (each such trip, a “Delivery”). Upon arrival at your Designated Address, the Service will notify you of the CyanBot’s arrival and that your ordered Retail Items are ready for pickup via text message or push notification. You must then meet the CyanBot at the Designated Address and pick up your ordered Retail Items by unlocking the CyanBot and retrieving your ordered Retail Items according to any instructions provided by us (a “Pickup”). You can initiate the Pickup by either texting us or unlocking the CyanBot via the Service (if that functionality is available to you). We may try to contact you by phone if you have not initiated the Pickup within a certain period of time after the CyanBot has arrived at the Designated Address. If we are unable to complete a Delivery after the CyanBot has arrived at the Designated Address because you fail to meet the CyanBot for Pickup within a reasonable time period, then the Service may prompt the CyanBot to leave with your ordered Retail Items, and we may cancel the Order and retain a portion of the Order fees to cover the costs of the attempted Delivery.
- Risk of Loss. For all Retail Items purchased under an Order, the risk of loss and title for the Retail Items pass to you when you initiate the Pickup for that Order.
- General Payment Terms. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.
- Price. Cyan reserves the right to determine pricing for the Service and any Retail Item. Cyan Robotics will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. Cyan may change the fees for any feature of the Service, including additional fees or charges, if Cyan gives you notice of the modified fees before they apply. However, Cyan reserves the right to change the price of any Retail Item at its sole discretion, without advance notice to you. Cyan reserves the right to correct any errors or inaccuracies in its pricing information and to modify and update that information at any time without notice. Cyan, at its sole discretion, may make promotional offers with different features and different pricing to any of Cyan’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
- Payment Process for Orders. After placing an Order and when prompted by the Service (either on the Service or via text message), you will pay to Cyan all sums due for the Order that you made, including all Service charges (e.g. delivery fees) and applicable taxes, with the payment method specified in the order confirmation page, such as Venmo. If you pay any fees with a credit card, including through a third-party service like Venmo, you represent and warrant to us that the credit card is yours, is valid, and has the necessary funds or credit available to cover your purchase. Cyan will use the phone number associated with your account on the Service or that you provided to Cyan when placing the Order to request payment from you via Venmo. If you choose to pay with another Venmo account not associated with that phone number, then we are not responsible for any delays or cancellations that result from our inability to match your payment to the Order.
- Subscription Service. The Service may include certain subscription-based plans with automatically recurring payments for periodic charges ("Subscription Service"). The "Subscription Billing Date" is the date when you purchase your first subscription to the Service. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period that you select on your account (such period, the "Initial Subscription Period") and will automatically renew for immediately successive subscription periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a "Subscription Period") unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, you authorize Cyan or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date for the accrued sums. For information on the "Subscription Fee", please visit our website at www.cyanbot.com for information on the Subscription Service and any Subscription Fees. Your account will be charged automatically on the Subscription Billing Date and periodically thereafter (in accordance with the billing frequency corresponding to the Subscription Service that you have activated) for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service before it renews in order to avoid billing of the next periodic Subscription Fee to your account. Cyan or its third-party payment processor will bill the periodic Subscription Fee to the payment method you provide to us when you register for your account or subscribe to a Subscription Service (or to a different payment method if you later change your payment information). You may cancel the Subscription Service by contacting us at: firstname.lastname@example.org. Cancellation of the Subscription Service will be effective at the end of the then-current Subscription Period.
- Refunds. If a scheduled Delivery is late or never made due to malfunctions of the Service or CyanBots, we may, at our sole discretion, either issue a refund or credit to be applied against future Orders on the Service. If you cancel an Order before a Host is assigned to the Order, then we will issue a refund in the amount of the cancelled Order. However, if you cancel an Order that is in progress (e.g., a Host has been assigned to the Order or the CyanBot is out for Delivery to your Designated Address), we may issue a refund or credit in the amount of the Order, less a cancellation fee to cover our costs.
- Delinquent Accounts. Cyan may suspend or terminate access to the Service, including fee-based portions of the Service, or the ability to place Orders, for any user associated with any Order for which a Delivery was made but for which any amount is unpaid, including any Order where payment is declined and authorization voided. Cyan may suspend or terminate your access to the features and benefits specific to a Subscription Service if payment of a Subscription Fee is declined. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
- Limited License. Subject to your complete and ongoing compliance with these Terms, Cyan 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.
- 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; or (c) 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.
- 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 Cyan 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.
- Ownership; Proprietary Rights. The Service is owned and operated by Cyan. 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 CyanBots (“Materials”) provided by Cyan are protected by intellectual property and other laws. All Materials included in the Service are the property of Cyan or its third-party licensors. Except as expressly authorized by Cyan, you may not make use of the Materials. Cyan reserves all rights to the Materials not granted expressly in these Terms.
- Third-Party Terms
- Third-Party Services and Linked Websites. Cyan may provide tools through the Service that enable you to export information to third-party services, including through features that allow you to link to an account on the third-party service, such as Twitter or Facebook, or through our implementation of third-party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Cyan may transfer that information to the applicable third-party service. Third-party services are not under Cyan’s control, and, to the fullest extent permitted by law, Cyan is not responsible for any third-party service’ use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Cyan’s control, and Cyan is not responsible for their content.
- Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
- Text Messaging. Cyan and those acting on our behalf, such as Hosts, may send you text (SMS) messages at the phone number you provide us. 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 CYAN, YOU CAN EMAIL SUPPORT@cyanbot.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.
- 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.
- 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.
- Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:
- 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;
- 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;
- 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;
- interfere with the operation of the CyanBots or with any Delivery, including by: (a) disabling or obstructing any CyanBot or its sensors; (b) vandalizing or otherwise intentionally causing damage to a CyanBot or its sensors; (c) forcibly unlocking any CyanBot to gain access to any Retail Item contained in the CyanBot; (d) intentionally affecting the functions of a CyanBot or its sensors by using electrical equipment or devices that generate ultrasonic waves or other similar means; (e) otherwise interacting with a CyanBot beyond what is necessary to retrieve the Retail Items that you purchased under an Order as permitted under these Terms; or (f) tampering or retrieving any Retail Item that may be contained in a CyanBot that was not purchased by you;
- 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;
- sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
- attempt to do any of the acts described in this Section 9 or assist or permit any person in engaging in any of the acts described in this Section 9.
- Modification of Terms. We reserve the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. 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 10, 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.
- Term, Termination and Modification of the Service
- 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 11.2.
- Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Cyan 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 email@example.com or, if this functionality is available to you, by deleting your account on the Service.
- 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 Cyan 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, 11.3, 12, 13, 14, 15 and 16 will survive.
- Modification of the Service. Cyan reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Cyan will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
- Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Cyan, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, “Cyan 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.
- Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. CYAN DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS, CONTENT, RETAIL ITEMS 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. CYAN 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 CYAN DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. CYAN DOES NOT WARRANT THAT ANY RETAIL ITEMS 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 RETAIL ITEMS NOR GUARANTEE THE QUALITY, SUITABILITY, SAFETY, OR AVAILABILITY OF ANY CYANBOT; AND (B) WHILE CYAN REVIEWS REQUESTS TO BECOME HOSTS BEFORE ACCEPTING HOSTS AND CONTRACTUALLY REQUIRES HOSTS TO AGREE TO ABIDE BY CERTAIN POLICIES AND PROCEDURES OF CYAN, CYAN DOES NOT GUARANTEE THAT ANY HOST WILL ABIDE BY SUCH POLICIES AND PROCEDURES IN CONNECTION WITH STORING, PACKING, AND DELIVERING ANY RETAIL ITEMS ORDERED BY YOU THROUGH THE SERVICE. AS A RESULT, YOU MUST CAREFULLY LOOK AT ALL PACKAGING LABELS, NOTICES AND RELATED INFORMATION ON ANY RETAIL ITEM ORDERED THROUGH THE SERVICE BEFORE CONSUMING OR OTHERWISE USING SUCH ITEM. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, CYAN SPECIFICALLY DISCLAIMS AND YOU RELEASE CYAN 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 CYANBOT.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR CYAN ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF CYAN 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 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. Cyan does not disclaim any warranty or other right that Cyan is prohibited from disclaiming under applicable law.
- Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL CYAN 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, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY CYAN ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 15.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF CYAN 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 CYAN 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 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Dispute Resolution and Arbitration
- Generally. In the interest of resolving disputes between you and Cyan in the most expedient and cost effective manner, and except as described in Section 15.2 and 15.3, you and Cyan 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 CYAN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 15.1, 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.
- Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15 within 30 days after the date that you agree to these Terms by sending a letter to Cyan Robotics, Inc., Attention: Legal Department – Arbitration Opt-Out, 947 9th St Apt 1, Santa Monica, CA 90403, 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 Cyan 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 16.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
- Arbitrator. Any arbitration between you and Cyan 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 Cyan. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- 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”). Cyan’s address for Notice is: Cyan Robotics, Inc., 947 9th St Apt 1, Santa Monica, CA 90403, 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 Cyan 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 Cyan 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 Cyan in settlement of the dispute prior to the award, Cyan will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
- Fees. If you commence arbitration in accordance with these Terms, Cyan 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 Cyan 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.
- No Class Actions. YOU AND CYAN 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 Cyan 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.
- Modifications to this Arbitration Provision. If Cyan makes any future change to this arbitration provision, other than a change to Cyan’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Cyan’s address for Notice of Arbitration, in which case your account with Cyan will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If Section 15.7 or the entirety of this Section 15 is found to be unenforceable, or if Cyan receives an Opt-Out Notice from you, then the entirety of this Section 15 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 16.2 will govern any action arising out of or related to these Terms.
- Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Cyan 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.
- 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.
- Contact Information. The Service is offered by Cyan Robotics, Inc., located at 947 9th St Apt 1, Santa Monica, CA 90403, United States. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
- 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.
- 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.
- 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.
- Notice Regarding Apple. This Section 17 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Cyan 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.