Last Updated: August 5, 2021 These Retailer Program Terms and Conditions (these “Terms”) set forth the legal terms entered into between the Retailer identified on the Pricing Addendum (“Retailer”) and Cyan Robotics, Inc. (d/b/a Coco) (“Coco”), and are effective as of the Effective Date set forth on the Pricing Addendum (the “Effective Date”). By executing the Pricing Addendum referencing these Terms, the parties agree to the following terms and conditions:
1. CERTAIN DEFINITIONS. Capitalized but undefined terms in these Terms have the meanings ascribed to them below, and capitalized but undefined terms in the Pricing Addendum have the meanings ascribed to them in these Terms.
1.1. “Authorized User” means an employee or contractor of Retailer (including one at any Participating Location) who is authorized by Retailer to access or use Coco Technology in accordance with these Terms.
1.2. “Cocobot” means any electric delivery robot of Coco that Coco makes available to Retailer under these Terms in connection with one or more Deliveries of Merchandise Orders pursuant to these Terms.
1.3. “Coco Hardware” means all tangible items of hardware provided by Coco to Retailer in connection with these Terms, including any Cocobot and any tablet device requested by Retailer on the Pricing Addendum.
1.4. “Coco Platform” means the proprietary system (including any related web and mobile applications) developed or controlled by Coco for processing Merchandise Orders and managing Deliveries by Cocobots.
1.5. “Coco Technology” means the Coco Platform, Coco Web Portal, any Cocobot, Coco Hardware, Documentation, and other software, hardware, and other technology of Coco that is provided by Coco to Retailer under these Terms.
1.6. “Coco Web Portal” means the web-based management console accessible at www.cocodelivery.com by Retailer using an internet browser and the access credentials assigned to or created by Retailer as part of onboarding under these Terms.
1.7. “Courier” means an individual employed by Coco or a subcontractor assigned by Coco that Coco makes available to Retailer under these Terms in connection with one or more Deliveries of Merchandise Orders pursuant to these Terms.
1.8. “Customer” means any customer of Retailer who places a Merchandise Order and any customer on whose behalf Retailer places a Merchandise Order.
1.9. “Delivery” means any actual or attempted delivery of Merchandise by a Cocobot or Courier to the address designated by the relevant Customer (or Retailer on behalf of a Customer) as part of the applicable Merchandise Order in accordance with these Terms.
1.10. “Delivery Parameters & Refund Matrix” means the Delivery Parameters & Refund Matrix.
1.11. “Documentation” means any user instructions and manuals, functional description, and technical specification of the Coco Technology that Coco makes available to Retailer in connection with the Coco Technology under these Terms.
1.12. “Merchandise” means an item of merchandise offered for sale by Retailer on the Coco Platform or Retailer Platform or sold by Retailer to any Customer in a Coco Platform Transaction (as defined in Section 2.2) or a Retailer Platform Transaction (as defined in Section 2.2).
1.13. “Merchandise Order” means an order for Merchandise processed on the Coco Platform as part of the Retailer Platform as part of a Retailer Platform Transaction.
1.14. “Participating Location” means any store location of Retailer that is identified on the Pricing Addendum by its mailing address or that is subsequently added as a store location via amendment to this Agreement and/or following written notice (email acceptable) from Retailer, subject to Coco’s approval in Coco’s sole discretion. If no separate Participating Location is identified on the Pricing Addendum, then the only Participating Location of Retailer will be Retailer’s store location at Retailer’s mailing address identified on the Pricing Addendum.
1.15. “Pricing Addendum” means the pricing addendum referencing these Terms that has been signed by the parties.
1.16. “Retailer Platform(s)” means the proprietary system or application (that is not Coco Technology) that is developed by or for Retailer or otherwise used by Retailer to receive and process orders from its customers, and interoperates with the Coco Platform or Coco Web Portal, including any system or application owned or hosted by a third-party (such third-party system or application a “Third-Party Retailer Platform”).
1.17. “Tobacco Products” means any product containing, made, or derived from tobacco or nicotine that is intended for human consumption whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including but not limited to cigarettes, cigars and cigarillos chewing tobacco/ZYN/Snus, Hookah Shisah, JUUL & other vapes, Cigalikes, Vaporizers, E-Juices and/or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking.
2. MERCHANDISE ORDERS; DELIVERY
2.1 Merchandise Orders; Authorization. During the Term, Customers (or Authorized Users acting on behalf of Customers) may place Merchandise Orders using Retailer Platforms (“Retailer Platform Transactions”). Retailer authorizes Coco to provide Deliveries in connection with each Retailer Platform Transaction.
For Customer orders placed on the Retailer Platform, Retailer will be responsible for providing the appropriate Proposition 65 alcoholic beverage warnings. Coco will have no responsibility to provide the required warnings for orders placed on the Retailer Platform.
2.2. Third-Party Retailer Platform. For purposes of Merchandise Orders placed through a Third-Party Retailer Platform, Retailer hereby represents and warrants that it has all necessary consents, authorizations and lawful authority for Coco to provide Deliveries on Retailer’s behalf under these Terms, including but not limited to Coco’s necessary access and use of relevant application programming interfaces of such Third-Party Retail Platforms to provide such Deliveries.
2.3. Delivery. Coco will receive Merchandise Orders via new order emails from the Retailer Platform. Merchant will then load a Cocobot using the Coco Platform by scanning an applicable Cocobot QR code located on the Cocobot r (“Assigned Cocobot”). The Assigned Cocobot will then complete Delivery for that Merchandise Order.
2.4. Customer Service. Retailer will be solely responsible for all Merchandise and all customer service issues relating to the Retailer Platform, Merchandise, and the processing and packing of Merchandise, and Coco will be responsible for all customer service issues relating to the Cocobots and the Coco Platform, in each case, subject to the Delivery Parameters & Refund Matrix. Retailer acknowledges and agrees that the success of the Coco Platform, Deliveries, and business with Customers depends on Retailer processing and packing all Merchandise Orders in a professional and timely manner. During the Term, Retailer will timely process and pack all Merchandise Orders and will maintain a sufficient number of trained employees to provide a high level of customer service to Customers and as needed to fulfill Retailer’s obligations under these Terms.
3. USE OF COCO PLATFORM
3.1. Access to Coco Platform. Subject to the terms and conditions of these Terms, Coco grants to Retailer and Authorized Users a limited, non-exclusive, non-transferable, non-sublicensable right during the Term to: (a) access the Coco Platform, via Coco Hardware or otherwise, solely to: (i) fulfill Merchandise Orders; (ii) communicate with Customers in connection with Merchandise Orders, solely as necessary to fulfill Merchandise Orders; and (iii) view the Cocobots available in the vicinity of the applicable Participating Location; and (b) use the Coco Web Portal to access the Coco Platform in order to perform other administrative functions permitted under these Terms solely in connection with Retailer’s sales of Merchandise. Retailer is responsible for keeping its account credentials in connection with Coco Technology confidential and all activities occurring under its account(s), including any accounts held or used by its Authorized Users, and will be liable for any act or omission by any Authorized User that results in a breach of these Terms.
3.2. No Extra Transaction Fees. Retailer will not charge Customer any additional fees, surcharges, tips, delivery charges, or other service charges for Merchandise delivered in connection with, the Coco Technology.
3.3. Advertising on the Coco Platform. The Coco Platform may include advertisements. Coco has the sole right to serve advertisements on the Coco Platform in its complete discretion. Coco may, but is under no obligation to, grant Retailer or third parties the right to serve advertisements on the Coco Platform in its sole and complete discretion, pursuant to these Terms or a separate agreement negotiated between Coco and the relevant party. Retailers may not advertise tobacco products on the Coco Platform Except as provided in such an agreement, Retailer will have no right to: (a) serve advertisements on the Coco Platform; (b) modify or object to advertisements selected by Coco or any party with which Coco enters into an agreement related to advertising on the Coco Platform; (c) block or hide advertisements on the Coco Platform in any way; or (d) receive any fees or payments of any kind arising from or related to advertisements on the Coco Platform.
3.4. Use Restrictions. Except as otherwise expressly provided in these Terms or to the extent such restrictions are impermissible under applicable law, Retailer and Authorized Users will not, and will not permit or authorize third parties to: modify, reproduce, translate, enhance, disassemble, decompile, reverse engineer or create derivative works of any portion of the Coco Technology; make rent, lease, or otherwise permit third parties to use any portion of the Coco Technology; or circumvent or disable any security or other technological features or measures of any portion of the Coco Technology. In addition to any remedies that may be available under Section 9.3 of these Terms, Coco reserves the right to suspend any Authorized User’s access to and use of the Coco Technology in the event Coco believes that the Authorized User is not in compliance with this Section 3.5.
3.5. Protection Against Unauthorized Use. Retailer will use best efforts to prevent any unauthorized use of the Coco Technology (e.g., use of Coco Technology on behalf of Retailer by any person other than Authorized Users) and immediately notify Coco in writing of any unauthorized use that comes to Retailer’s attention. If there is unauthorized use by anyone who obtained access to the Coco Technology directly or indirectly through Retailer, then Retailer will take all steps reasonably necessary to terminate the unauthorized use. Retailer will cooperate and assist with any actions taken by Coco to prevent or terminate unauthorized use of any Coco Technology.
3.6. Business Practices. Retailer’s use of the Coco Technology will comply with all applicable laws and regulations, and Retailer will refrain from any unethical conduct or any other conduct that may tend to damage Coco Technology or the reputation of Coco. Except as provided under these Terms, Retailer will not make or publish any representations, warranties, guarantees, or commitments on behalf of Coco concerning any matter whatsoever. Retailer will ensure that all of its employees and contractors who operate Coco Technology are fully trained with respect to its use.
4. COCO HARDWARE AND ONBOARDING SERVICES
4.1. Coco Hardware. During the Term, Coco will make one or more Cocobots in the vicinity of any Participating Location available to accept and make Deliveries of Merchandise Orders. To the extent the Pricing Addendum specifies that Retailer ordered Coco Hardware from Coco (including by opting to receive a tablet from Coco), then the following terms apply:
(a) Ownership. Coco will own and retain title to all Coco Hardware. Retailer, at its expense, will protect Coco's title to Coco Hardware and keep the Coco Hardware free from all claims, liens, encumbrances, security interests, and other legal processes. The Coco Hardware is the personal property of Coco, and no Cocobot is to be regarded as a fixture or otherwise part of the real estate on which it may be located.
(b) Maintenance. Retailer must maintain the Coco Hardware in the same condition as when the Coco Hardware was delivered to Retailer (subject to normal wear and tear) and will promptly report to Coco any damage to the Coco Hardware that it becomes aware of. Retailer remains responsible for the performance of its obligations under these Terms and use of the Coco Hardware under its direct or indirect possession or control. Retailer agrees to comply with the Coco’s then-current Hardware Policy and applicable third-party terms in connection with its use of Coco Hardware under these Terms.
(c) Return. Upon termination of these Terms, Retailer will promptly return to Coco any and all Coco Hardware; and upon reasonable prior request, return or delete Coco Data.
(d) Repossession. If, following termination of these Terms, Retailer fails to promptly return to Coco any and all Coco Hardware, Coco may (i) demand that Retailer return the Coco Hardware to Coco; (ii) take possession of the Coco Hardware, wherever it may be located, without demand or notice, without any court order or other process of law and without liability to Retailer for any damages occasioned by such taking of possession, and any such taking of possession will not constitute a breach of these Terms; and (iii) pursue any other remedy available at law or in equity, including seeking damages, specific performance, or an injunction.
(e) Cumulative Remedies. Each of the remedies under these Terms is cumulative, and not exclusive, and in addition to any other remedy referred to herein or otherwise available to Coco in law or in equity. Any repossession or subsequent sale or lease by Coco of the Coco Hardware will not bar an action for a deficiency based on the provisions of these Terms, and Retailer will remain liable for any such deficiency after any disposition of the Coco Hardware by Coco, provided that no exercise of Coco's remedies shall allow Coco to bring action against Retailer to recover any amounts in excess of the total of: (i) hardware fees due, late charges, indemnification payments or other amounts due, (ii) Coco's residual value of the Coco Hardware, and (iii) any of Coco's reasonable expenses with respect to collection under these Terms. The bringing of an action or the entry of judgment against Retailer will not bar Coco's right to repossess any or all items of the Coco Hardware.
4.1. Onboarding Services.
(a) General. Subject to the terms and conditions of these Terms, Coco will use commercially reasonable efforts to train Retailer’s personnel on use of the Coco Technology and Coco Hardware at a cost set forth on the Pricing Addendum. Retailer will cooperate with Coco to assist in the set-up of the Coco Hardware and training of Retailer’s personnel on use of the Coco Hardware and the Coco Technology.
5.1. Coco Data. Data or information other than Retailer Data that is collected, generated, or derived by Coco as a result of Retailer’s or any Customer’s access to or use of Coco Technology (“Coco Data”) will belong to Coco. Coco grants to Retailer a non-exclusive license to use Coco Data solely in order to process and pack Merchandise Orders in accordance with these Terms and otherwise fulfill its obligations under these Terms.
5.2. Retailer Data. Any information and data (including Retailer Materials) provided by Retailer to Coco regarding Retailer Platform Transactions will belong to Retailer (“Retailer Data”). Retailer hereby grants to Coco a non-exclusive license to: (a) access, store, process, and otherwise use Retailer Data to fulfill Coco’s obligations under these Terms or for Coco’s internal business purpose; and (b) use Retailer Data on an aggregated and de-identified basis to analyze, maintain, and improve Coco Technology and Coco’s product and services offering. Coco will not publicly disclose any Retailer Data in a manner that would reasonably likely identify Retailer, any Customer, or any Authorized User as being the source of the Retailer Data.
6. PROMOTIONS; TRADEMARKS
6.1. Marks. Subject to the terms and conditions of these Terms, each party (the “Mark Owner”) grants the other party (the “Mark User”) a limited, non-exclusive, non-transferable, non-sublicensable right during the Term to use its logos, service marks, trademarks, or trade or corporate names (“Marks”) in connection with their respective obligations under these Terms; provided that each use of the Marks by the Mark User is approved by the Mark Owner in writing in advance of any such use, and that Mark User will only use the Mark Owner’s Marks in accordance with its trademark use guidelines. The Mark User acknowledges that it has no interest in the Mark Owner’s Marks other than the license granted to the Mark User under these Terms and that Mark Owner will remain the sole and exclusive owner of all right, title and interest in and to its Marks. Any use by Mark User of Mark Owner’s Marks, and all goodwill associated therewith, will inure solely to the benefit of such Mark Owner.
7.1. Support Services. During the Term, Coco will use commercially reasonable efforts to provide technical and operational assistance to Retailer: (a) online - 9:00 AM PT - 10:00 PM PT, 7 days a week; and (b) by phone – 9:00 AM PT - 10:00 PM PT, 7 days a week. Unless otherwise expressly agreed to by Coco in a separate written agreement, those support services do not include any work with or relating to any third-party equipment or software (other than Coco Technology).
7.2. Error Reporting. Retailer will document and promptly report all detected failures of the Coco Technology to perform substantially in accordance with the applicable Documentation provided by Coco under these Terms (excluding any faults in the Documentation) (each such failure, an “Error”) to Coco with enough detail to permit Coco to reproduce the Error. Retailer will provide reasonable assistance to Coco in recreating and diagnosing each Error. Retailer will provide Coco with reasonable access to all necessary personnel to answer questions regarding Errors and other problems reported by Retailer.
7.3. Error Corrections. Coco will use commercially reasonable efforts to correct Errors affecting Retailer’s use of the Coco Technology with a level of effort commensurate with the severity of the Error.
8. FEES AND PAYMENT TERMS
(a) Subscription. In exchange for Retailer’s access to Cocobots, the Coco Platform, and the Coco Web Portal during the Term, Retailer will pay Coco the subscription fees set forth on the Pricing Addendum on a weekly basis until these Terms are terminated (“Subscription Fees”).
(b) Delivery. For each Delivery of a Merchandise Order, Retailer will pay to Coco the fees for the Delivery specified on the Pricing Addendum (“Delivery Fees”). Delivery Fees will be payable to Coco subject to the Delivery Parameters & Refund Matrix.
(c) Hardware. To the extent Retailer requested any Coco Hardware on the Pricing Addendum and Coco provides that Coco Hardware to Retailer under these Terms, Retailer will pay to Coco the fees for that Coco Hardware specified on the Pricing Addendum (“Hardware Fees”).
(d) Onboarding. To the extent any onboarding fee is set forth on the Pricing Addendum and Coco provides onboarding services to Retailer, Retailer will pay to Coco the onboarding fees specified on the Pricing Addendum (“Onboarding Fees”).
(e) Service. For each Delivery of a Merchandise Order, Retailer will pay to Coco the service fee (“Service Fee”) specified on the Pricing Addendum.
8.2. ACH Payment; Invoices.
(a) ACH Payments. As part of the Retailer’s onboarding, Retailer will execute an Automated Clearing House Transactions form (“ACH Authorization Form”) which will allow Coco to automatically debit Retailer’s specified bank account (“Account”) on a weekly basis as further detailed herein. Retailer’s billing cycle will be weekly from Monday at 12:00 AM to Sunday at 11:59 PM (local time) (each a “Billing Cycle”) and thereafter Coco will debit Retailer’s Account for any applicable Fees incurred by Retailer during the applicable Billing Cycle. Retailer understands and agrees that as this is an electronic transaction and that adequate funds must be available for withdrawal from its Account as of the end of each Billing Cycle. In the case of an ACH transaction being rejected for Non-Sufficient Funds (NSF), submission error, or other bank related return reasons, Retailer understands and agrees that Coco may at its discretion resubmit the ACH debit transaction within 5 business days. Retailer further understands and agrees that, a late charge equal to 1.5% of the unpaid balance per calendar month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date such payment is due until the date such payment is paid to Coco plus all expenses of collection (if any) may be assessed if the amount due is not received in good and collected funds. Retailer also understands and agrees that a return item charge of $50.00 USD may be assessed for each returned ACH debit. If a payment default is not rectified within 7 days, Coco, in addition to all other rights and remedies, reserves the right to suspend Retailer’s access to the Coco Platform until such time as all overdue payments and interest are paid in full.
(b) Invoices. On a weekly basis, Coco will provide Retailer with an invoice detailing all Fees incurred during the prior Billing Cycle. If Retailer believes that Coco has debited Retailer incorrectly, Retailer must contact Coco no later than 14 days after the date on the invoice in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department. Any credits will appear as a credit against future Fees on a future Billing Cycle and will be noted on the applicable invoice.
8.3. TAXES. Retailer is responsible for and will pay all taxes and other governmental charges on the services provided by Coco under these Terms, the Coco Hardware, the Merchandise and the sale thereof, and all transactions and payments made through the Coco Technology or made pursuant to these Terms, except for government taxes imposed on the net income, personnel, or real property of Coco.
9. TERM AND TERMINATION
9.1. Term. Unless terminated earlier in accordance with these Terms, these Terms will commence upon the Effective Date and continue for an initial term equal in duration to the subscription term specified on the Pricing Addendum (e.g., a month, a year). Thereafter, these Terms will automatically renew for additional periods equal in duration to that initial subscription term, unless either party gives the other party written notice of its intent not to renew (the initial term and all renewal terms, collectively, the “Term”).
9.2. Termination for Convenience. Not withstanding anything herein to the contrary, either party may terminate these Terms for convenience.
9.3. Termination for Breach. If a party commits a material breach of these Terms, then the non-breaching party may give the breaching party written notice of the breach (including a statement of the facts relating to the breach, the provisions of these Terms that are in breach, and the action required to cure the breach (if applicable)) and of the non-defaulting party’s intention to terminate these Terms. If the breaching party fails to cure a material breach specified in any such notice within 5 days (or such later date as may be specified in such breach notice) after receipt of notice, then the non-breaching party may terminate these Terms upon written notice to the breaching party. If Retailer is in material breach of these Terms due to a particular Participating Location, Coco may choose to terminate these Terms solely with respect to such Participating Location in accordance with the notice and cure procedures set forth in this Section 9.3, in which case, these Terms will remain in effect with respect to Retailer and any remaining Participating Locations.
9.4. Suspension. If Retailer fails to timely pay any fees due to Coco under these Terms, Coco may, without limitation to any of its other rights or remedies, immediately suspend Retailer’s access to the Coco Technology and Coco’s performance of any services under these Terms until Coco receives all undisputed amounts due.
9.5. Bankruptcy. Either party may terminate these Terms immediately upon written notice to the other party if the other party files a petition in bankruptcy, has a receiver, bankruptcy trustee, or similar official appointed to handle its assets or affairs, or becomes insolvent or otherwise unable to pay its debts when due.
9.6. Post-Termination Obligations. The following obligations and provisions will survive any expiration or termination of these Terms: any and all liabilities accrued prior to the effective date of the expiration or termination; and Sections 1, 4.1, 4.1(d), 4.1(e), 5, 8, 9.6, 10, 11.2, and 12 through 16 of these Terms.
10. INTELLECTUAL PROPERTY
10.1. Ownership; Rights Reserved. As between the parties, Coco owns all right, title, and interest in and to Coco Technology (including any updates, modifications, or additions to Coco Technology), and Retailer owns all right, title and interest in Retailer Platform and Retailer Materials (including any updates, modifications, or additions to the Retailer Platform or Retailer Materials). Except as expressly set forth in these Terms, neither party assigns any right, title, or interest in, or grants any licenses under, any patent, copyright, trade secret, trademark, or other intellectual property right of such party, whether by implication, estoppel, or otherwise. Retailer will not have any rights to the Coco Technology, except as expressly granted in these Terms.
10.2. Feedback. Retailer grants to Coco a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable, sublicensable license to use, copy, modify, distribute, including by incorporating into the Coco Technology, or otherwise freely exploit any suggestions, enhancement requests, recommendations, or other feedback provided by Retailer to Coco.
11. WARRANTY; DISCLAIMER
11.1. Retailer Warranty. Retailer represents and warrants that it owns or controls each Participating Location and has all necessary authority to enter into these Terms.
11.2. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THESE TERMS, COCO MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. COCO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COCO DOES NOT WARRANT THAT THE COCO TECHNOLOGY IS OR WILL BE ERROR-FREE OR THAT OPERATION OF ANY COCO TECHNOLOGY WILL BE SECURE OR UNINTERRUPTED. COCO EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON: (A) RETAILER’S USE OF THE COCO TECHNOLOGY UNLESS SUCH USE IS IN COMPLIANCE WITH COCO’S DOCUMENTATION AND DIRECTION; OR (B) RETAILER’S USE OF ANY THIRD-PARTY PRODUCTS OR SERVICES, INCLUDING RETAILER PLATFORM.
12. INDEMNIFICATION BY COCO
12.1 Defense. Coco will defend Retailer and its employees, directors, agents, and representatives (“Retailer Indemnified Parties”) from: (a) any actual or threatened third-party claim that the Coco Technology infringes or misappropriates any U.S. patent issued as of the Effective Date or any copyright or trade secret of any third party during the Term; and (b) any third-party claim arising from Coco’s gross negligence or willful misconduct, in each case, only if the applicable Retailer Indemnified Party: (i) gives Coco prompt written notice of the claim; (b) gives Coco complete control over the defense and settlement of the claim, provided, however, that Coco will not without the consent of Retailer agree to any settlement that admits fault by Retailer Indemnified Parties; (c) provides such information and assistance in connection with the defense and settlement of the claim as Coco may reasonably request; and (d) complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing or allegedly infringing materials).
12.2. Indemnification. Coco will indemnify each of the Retailer Indemnified Parties against: all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 12.1 above; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Coco’s consent after Coco has accepted defense of such claim); and if any proceeding arising under Section 12.1 above is settled, all amounts to any third party agreed to by Coco in settlement of any such claims.
12.3. Mitigation of Infringement Action. If Retailer’s use of the Coco Technology is, or in Coco’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 12.1(a) above, then Coco will either: procure the continuing right of Retailer to use the Coco Technology; replace or modify the Coco Technology in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, Coco is unable to do either (a) or (b), Coco may terminate these Terms immediately upon providing Retailer with written notice.
12.4. Exclusions. Coco will have no obligation under this Section 12 for any infringement or alleged infringement to the extent that it arises out of or is based upon: the combination, operation, or use of the Coco Technology together with other components not provided by Coco, if such infringement or alleged infringement would have been avoided but for such combination, operation, or use; designs, requirements, or specifications required by or provided by Retailer, if the infringement or alleged infringement would not have occurred but for such designs, requirements, or specifications; use of the Coco Technology outside of the scope of the rights granted to Retailer under these Terms; Retailer’s failure to use the latest release of any Coco Technology or to comply with instructions provided by Coco, if the infringement or alleged infringement would not have occurred but for such failure; or any modification of any portion of the Coco Technology not made by Coco where such infringement or alleged infringement would not have occurred absent such modification.
12.5. Exclusive Remedy. This Section 12 states Coco’s sole and exclusive liability, and Retailer’s sole and exclusive remedy, for the actual or alleged infringement of any third-party intellectual property right by any portion of the Coco Technology.
13. INDEMNIFICATION BY RETAILER
13.1. Defense. Retailer will defend Coco and its employees, directors, agents, and representatives (“Coco Indemnified Parties”) from any actual or threatened third-party claim arising out of or based upon: (a) Retailer’s fulfillment of Merchandise Orders; (b) any Customer claims relating to Merchandise Orders; or (c) Retailer’s gross negligence, willful misconduct, violation of applicable law, or material breach of these Terms. Coco will: (i) give Retailer prompt written notice of the claim; (ii) grant Retailer complete control over the defense and settlement of the claim, provided, however, that Retailer will not without the consent of Coco agree to any settlement that admits fault by Coco; and (iii) provide such information and assistance with the defense and settlement of the claim as Retailer may reasonably request.
13.2. Indemnification. Retailer will indemnify the Coco Indemnified Parties against: all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 13.1 above; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Retailer’s consent after Retailer has accepted defense of such claim); and if any proceeding arising under Section 13.1 above is settled, Retailer will pay any amounts to any third party agreed to by Retailer in settlement of any such claims. This Section 13.2 will apply regardless of any insurance coverage held by Coco.
14. LIMITATIONS OF LIABILITY
14.1. Disclaimer of Indirect Damages. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR RETAILER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13, NO PARTY WILL UNDER ANY CIRCUMSTANCES BE LIABLE TO ANY OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, INCLUDING LOST PROFITS OR LOSS OF BUSINESS, EVEN IF A PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
14.2. Cap on Liability. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL COCO’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID OR PAYABLE TO COCO BY RETAILER DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE ACTS OR CIRCUMSTANCES FROM WHICH SUCH LIABILITY AROSE.
14.3. Independent Allocations of Risk. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY COCO UNDER THESE TERMS AND 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. ALL SUCH LIMITATIONS, DISCLAIMERS, AND EXCLUSIONS (INCLUDING THIS SECTION 14) WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
15.1. Definition. “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a party (the “Receiving Party”) during the Term and that the Receiving Party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party (such other party, the “Disclosing Party”); except that Confidential Information does not include any information that: was known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with these Terms; is independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party; is rightfully acquired by the Receiving Party from another source without restriction as to use or disclosure; or is or becomes publicly known through no fault or action of the Receiving Party.
15.2. Restricted Use and Nondisclosure. During and after the Term, the Receiving Party will: use the Disclosing Party’s Confidential Information solely to perform Receiving Party’s obligations or exercise Receiving Party’s rights under these Terms; not disclose the Disclosing Party’s Confidential Information to a third party unless such third party has a need to access the Confidential Information to perform in accordance with these Terms and such third party has executed a written agreement that contains terms that are substantially similar to these Terms contained in this Section 15; and maintain the secrecy of, and protect from unauthorized use and disclosure, the Disclosing Party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
15.3. Required Disclosure. If the Receiving Party is required by law or judicial process to disclose Confidential Information, the Receiving Party must give prompt written notice to the Disclosing Party of such requirement before such disclosure and, upon Disclosing Party’s request, provide reasonable assistance to the Disclosing Party in obtaining a protective order.
15.4. Return of Materials. Upon the termination or expiration of these Terms, each Receiving Party will deliver to the Disclosing Party or destroy all of Disclosing Party’s Confidential Information that the Receiving Party may then have in its possession or control.
16.1. Governing Law. These Terms will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, U.S.A, without regard to the conflict of laws principles thereof.
16.2. Dispute Resolution. Any dispute between the parties arising out of or in connection with these Terms or any breach thereof shall be settled by arbitration in Los Angeles County, California, by a single arbitrator chosen and acting in accordance with the rules of the American Arbitration Association. The award rendered by the arbitrator shall be final and binding on the parties, and judgment thereon may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for equitable or injunctive relief.
16.3. Relationship. Coco is an independent contractor (and not an agent or representative) of Retailer in the performance of these Terms. These Terms does not, and will not be interpreted or construed to, create or evidence any association, joint venture, partnership, or franchise between the parties; impose any partnership or franchise obligation or liability on either party; or prohibit or restrict Coco from performing any services for any third party or providing any products to any third party.
16.4. Assignability. Retailer shall not assign any part of these Terms or delegate any of the obligations set forth in these Terms without the prior written consent of Coco, and any attempt to assign these Terms in whole or in part without Coco’s prior written consent is void; except that Retailer may assign these Terms in its entirety without such prior written consent to Retailer’s parent or subsidiary entity, or to Retailer’s successor in interest in connection with a merger, acquisition, reorganization, or change of control, or the sale of substantially all of Retailer’s assets to which these Terms pertain.
16.5. Subcontractors. Coco may utilize one or more subcontractors or other third parties to perform its duties under these Terms as long as Coco remains responsible for all of its obligations under these Terms.
16.6. References. Coco may request of Retailer, and Retailer is not obligated to agree to, but will consider in good faith Coco’s request to: make one or more representatives reasonably available for reference inquiries from potential Coco customers, Retailers, and investors; permit Coco to create and publish a case study describing in general terms the nature of Retailer or a Participating Location’s use of the Coco Technology or Coco Hardware; or permit Coco to issue and publish a press release containing a quotation from a representative of Retailer announcing that Retailer and Coco have entered into these Terms.
16.7. Notices. Any notice required or expressly permitted to be given under these Terms will be made in writing and will be deemed given (a) four days after being sent by certified United States mail; or (b) two days after being sent by a reputable overnight courier such as Federal Express, in either case with delivery confirmation and all postage and delivery fees prepaid, to the receiving party, for Retailer, at its address set forth on the Pricing Addendum and, for Coco, at 1746B Berkeley St, Santa Monica, CA 90404, with a copy via email to email@example.com, or to such other address as any party may provide from time to time by notice given in accordance with this section.
16.8. Force Majeure. Coco will not be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any natural disaster, fire, earthquake, flood, weather condition, epidemic, pandemic, acts of war or terror, civil disorder or disturbance, explosion, sabotage, technology attacks, governmental action or prohibition, failure of power, transportation, or communication systems, or any other cause or condition beyond Coco’s reasonable control, so long as Coco uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
16.9. Waiver. The waiver by a party of any breach of any provision of these Terms does not waive any other breach. The failure of a party to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.
16.10. Severability. If any provision of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect, and the parties agree to replace such illegal, unenforceable, or invalid provision with a legal, enforceable, and valid provision that effects the original intent of the parties with respect to such provision.
16.11. Commencing Legal Action. Any action arising out of these Terms (including any action for breach of these Terms) must be commenced within one year from the date that the right, claim, or cause of action first accrued.
16.12. Interpretation. Each party had the opportunity to review these Terms. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language. The headings appearing at the beginning of several sections contained in these Terms have been inserted for identification and reference purposes only and will not be used to construe or interpret these Terms. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. Any reference to any agreement, document or instrument will mean such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof. Whenever the words “include”, “includes” or “including” are used in these Terms, they will be deemed to be followed by the words “without limitation.” Whenever the words “hereof,” “hereto,” and words of similar import are used in these Terms, they will be deemed references to these Terms as a whole and not to any particular article, section or other provision hereof. The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.
16.13. Modification to these Terms. Coco may update or modify these Terms upon 30 days’ advance written notice to Retailer and by publishing the updated or modified terms at www.cocodelivery.com/terms or www.cocodelivery.com/privacy. If Retailer does not agree to the update or modification, Retailer may elect to terminate these Terms upon written notice to Coco during the 30-day notice period, before the update or modification takes effect. By not electing to terminate these Terms in accordance with this Section 16.13 within the 30-day notice period, Retailer agrees to be bound by the updated or modified terms. Except as provided in this Section 16.13, these Terms may be changed only by a written agreement signed by an authorized agent of each party. The foregoing notwithstanding, Coco may, in its sole discretion, in email or via other written notification, waive all or a portion of the Delivery Fees charged for a predetermined period and/or may offer Retailer certain time bound promotional pricing (each a “Pricing Promotion). Coco may, in its sole discretion, cancel, revoke, or terminate the Pricing Promotion without prior notice. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of these Terms. No employee, agent, or other representative of Coco has any authority to bind Coco with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in these Terms. Coco will not be bound by, and specifically objects to, any term, condition or other provision that is different from or in addition to these Terms (whether or not it would materially alter these Terms) that is proffered by Retailer in any receipt, acceptance, confirmation, correspondence, purchase order, or otherwise, unless Coco specifically agrees to such provision in writing with a signature from an authorized agent of Coco.
16.14. Entire Agreement. These Terms, including the Pricing Addendum and any other exhibits, annexes, or other documents expressly incorporated by reference into these Terms, is the final and complete expression of the agreement between the parties regarding the subject matter of these Terms. These Terms supersede and govern all previous oral and written communications regarding these matters, all of which are merged into these Terms, except that these Terms do not supersede any prior nondisclosure or comparable agreement between the parties. In the event of a conflict between these Terms and the Pricing Addendum, these Terms will control.
16.15. Counterparts and Electronic Signatures. The Pricing Addendum entered into in connection with these Terms and any amendments thereto may be executed in two or more counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered will be an original, but all of which together will constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a fax machine, by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail, or other forms of electronic signature (DocuSign, Adobe Sign, FormStack acknowledgement) (any such delivery, an “Electronic Delivery”) will be treated in all manner and respects as an original executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person to the fullest extent permitted by applicable law, including, without limitation the Federal Electronics Signatures in Global and National Commerce Act and any applicable law, including, without limitation, state law. No party hereto shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each party forever waives any such defense, except to the extent that such defense relates to lack of authenticity. Unless otherwise provided in this Agreement, the words “execute,” “execution,” “signed” and “signature” and words of similar import used in or related to any document to be signed in connection with this Agreement, or any of the transaction contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include Electronic Delivery and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any applicable law.
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.)