Last Revised on January 14, 2020
Welcome to the Terms of Service (these “Terms”) applicable to the websites and mobile applications operated or provided by or on behalf of CiBO Technologies, Inc., a Delaware corporation, (“CiBO”, “we” or “us”), including without limitation, cibotechnologies.com and any other website that is automatically directed to such website, the mobile application known as the CiBO Application (the “App”), and the sites, content, applications, services, tools, functionality and features offered on or through each of the foregoing (collectively, the “Services”). These Terms govern your access to and use of the Services. Please read these Terms carefully, as they include important information about your legal rights. By accessing and/or using the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, you are not permitted to, and must immediately cease to, access or use the Services.
For purposes of these Terms, “you” and “your” means you as the user of the Services. If you use the Services on your own behalf, then each time you access or use the Services, the represent and warranty to us that you are of legal age, and fully capable and competent, to enter into a legally binding agreement with CiBO; if you access or use the Services on behalf of a company or other entity then “you” includes you and that entity, and each time you access or use the Services you represent and warrant to us that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf.
The Services are for general informational purposes only. The Services do not provide specific investing, financial or real estate advice to any individual. CiBO is not a lender or real estate broker representing you or another user. Under no circumstances should any information or materials presented on or through the Services be used or construed as: (a) leasing or renting, an offer to lease or rent, or negotiate the lease of real property, or a solicitation of an offer to buy, sell, lease or rent any real property; or (b) providing any real estate, investment or financial advice. CiBO assumes no responsibility or liability of any kind for any result or consequence related in any way, directly or indirectly, to any decision, action or inaction that you take based on the Services or any information made available to you through the Services.
Please note that Section 8 contains an arbitration clause and class action waiver. By agreeing to these Terms, you agree (a) to resolve all disputes with us through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) that you waive your right to participate in class actions, class arbitrations, or representative actions. You have the right to opt-out of arbitration as explained in Section 8.
TABLE OF CONTENTS
1. Who May Use the Services
2. User Accounts, Payments, SUBSCRIPTIONS and free trials
4. Rights We Grant You
5. Ownership and Content
6. Third Party Services and Materials
7. Disclaimers, assumption of risk, Limitations of Liability and Indemnification
8. ARBITRATION AND CLASS ACTION WAIVER
9. Additional Provisions
1. Who May Use the Services
You must be 18 years of age or older and reside in the United States to access and use the Services. Children under the age of 13 are not permitted to use the Services and are not permitted to create an Account (defined below) or have an Account created on their behalf by a parent or guardian. By accessing or using the Services, you represent and warrant that you meet these requirements, or if you are accepting these Terms on behalf a minor in accordance with the preceding sentence, you represent and warrant that you will be responsible for the minor’s compliance with these Terms.
2. User Accounts, Payments, SUBSCRIPTIONS and free trials
2.1 Creating and Safeguarding your Account. To use certain of the Services, you may need to create an account (“Account”). You agree to provide us with accurate, complete and updated information for your Account as may be requested or required from time to time, including your name and email address, and with respect to an account of an entity, additional information that may be necessary to confirm, or permit us to confirm, that you represent such entity and shall have administrative access to such entity’s Account. You can access, edit and update your Account by logging onto the Services. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us at email@example.com if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account.
2.2 Subscription Payment. The Services are currently provided free of charge, but CiBO reserves the right to charge for the Services at any time. If you subscribe to any of our paid Services, you agree that (a) we may collect and, through either our third-party payment processor or through the applicable app store, store and continue billing your payment method (e.g. credit card) to avoid interruption of the Services, and (b) we may calculate taxes payable by you based on the billing information that you provide us at the time of purchase. We reserve the right to change our subscription plans or adjust pricing for the Services in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise provided in these Terms or required by applicable law, any price changes or changes to your subscription plan will take effect following reasonable notice to you. You must provide us (or our designated third-party payment provider) with an accurate and valid credit card or other payment information upon agreeing to subscribe for a paid Service, and shall timely provide updated payment information in the event any information you previously provided becomes invalid or incomplete. All subscriptions are payable in accordance with payment terms in effect at the time the subscription becomes payable. Subscriptions will not be processed until payment has been received in full, and any holds on your account by any other payment processor are solely your responsibility.
2.3 Subscription Renewals and Cancellations. You agree that if you purchase a subscription, your subscription will automatically renew at the subscription period frequency referenced on your subscription page (or if not designated, then monthly), and your payment method will automatically be charged at the start of each new subscription period for the fees and taxes applicable to that period. To avoid future subscription charges, you must cancel your subscription before the subscription period renewal date by doing the following: email us at firstname.lastname@example.org or to the U.S. mailing address listed in the “How to Contact Us” section below.
2.4 No Subscription Refunds. Except as expressly set forth in these Terms or required by applicable law, payments in respect of any subscriptions to the Services are non-refundable and there are no credits for partially used periods. Following any cancellation by you in accordance with Section 2.3, however, you will continue to have access to the paid Services through the end of the subscription period for which payment has already been made.
2.5 Free Trials. If we permit you to sign up for a trial for the paid portion of or any subscription to the Services, your trial period starts on the day you enroll in such trial and lasts for the number of days indicated on the trial sign-up page. You may cancel your trial at any time until the last day of your trial by following the cancellation procedures outlined in Section 2.3 (other than the requirement that you cancel your subscription before the subscription period renewal date). If you timely cancel your trial, you acknowledge and agree that we may delete all of your content or data associated with your trial at the end of such trial period. If you do not timely cancel your trial in accordance with these Terms and we have notified you by email or phone that you will be automatically enrolled in a paid subscription at the end of your trial, you acknowledge that you be charged, and authorize us to charge the credit card or other payment information you provided, the product or subscription amount set forth on the trial enrolment page in respect of your right to continue to use the paid Services during the then-subscription period. If your trial is converted into a paid subscription, you may cancel such subscription in accordance with Section 2.3 of these Terms.
4. Rights We Grant You
4.1 License Grant. Subject to your compliance with these Terms, CiBO hereby grants to you, a worldwide, revocable, non-assignable, non-sublicensable, non-transferrable, and non-exclusive license to use the software provided to you as part of the Services, including to download, install and operate copies of the App on electronic devices owned by you only for personal, non-commercial purposes (the “Personal License”). The Personal License is granted to you for the sole purpose of enabling you to use and enjoy the Services in accordance with these Terms. As set forth below, the Personal License does not provide you with title to or ownership of the Services (or any component thereof), but only a limited license to use the Services in accordance with these Terms and subject to the use restrictions described herein.
4.2 Restrictions On Your Use of the Services. You may not do any of the following, unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so:
(a) copy, modify, distribute, transmit, publish, license, or create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services other than Your Content (defined below);
(b) duplicate, transmit, post, link, deep link, frame, redistribute, sell, decompile, reverse engineer, modify, translate, disassemble, decode or create derivative works from, the Services (including any underlying idea or algorithm), or attempt to do any of the same, other than installing duplicate versions of the App in accordance with these terms;
(c) use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
(d) use automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services;
(e) exploit the Services for any commercial purpose, including without limitation (i) communicating or facilitating any commercial advertisement or solicitation, (ii) directly or indirectly developing or aiding the development of any product, software, service or feature that offers any functionality substantially similar to, competitive with, or a derivation of, the Services, or (iii) distributing, renting, leasing, lending, selling, licensing, assigning, exporting, importing, conveying or otherwise granting rights to third parties with regard to the Services;
(f) share a user subscription with another user, or using or installing the App on a network or for online use;
(g) access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party’s access to or use of the Services or use any device, software or routine that causes the same;
(h) attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Services;
(i) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services, including any digital rights management controls or other technical measures that are designed to control access to the App, prevent unauthorized copying of the App, or otherwise preventing access to the App that exceeds the limited rights and licenses granted under these Terms;
(j) use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Services to monitor, extract, obtain, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
(k) introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems or the Services;
(l) use the Services for illegal, harassing, unethical, or disruptive purposes;
(m) violate any applicable law or regulation (including U.S. Export Administration Regulations and other import and export laws and regulations), or right of any third party (including any intellectual property rights, and rights of privacy or publicity), in connection with your access to or use of the Services;
(n) impersonate any person or entity, or forge or manipulate headers to disguise the origin of any of Your Content;
(o) publish any content on or through the Services that (i) is libellous, vulgar, defamatory, threatening, abusive, harassing, discriminatory, scandalous, obscene, pornographic or unlawful, or encouraging of any criminal behaviour or offense; (ii) contains material from other copyright works without the written consent of the owner of such copyrighted material; (iii) infringes upon any copyright or violate any property rights; or (iv) contain any review or any portion thereof that you were directly or indirectly paid to write; and
(p) access or use the Services in any way not expressly permitted by these Terms.
4.3 Use of the App. You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to download, install and use the App, including to authenticate that you have a valid license to the App and to enable certain features therein. We do not guarantee that the App can be accessed and used on any particular device or with any particular service plan. We do not guarantee that the App or will be available in, or that orders for Products can be placed from, any particular geographic location. If the mobile device on which the App is installed does not have cellular or Internet connectivity, or if the App does not have the necessary permissions to access such connectivity, then the App and certain features therein may not operate as intended or may cease to function properly, either in whole or in part. Additionally, you are responsible downloading and installing new versions, upgrades, bug fixes, patches and other error corrections and/or new features made available by or on behalf of CiBO (collectively, “Upgrades”) and acknowledge that the App or certain portions thereof may not properly operate if you fail to do so. All Updates will be deemed part of the App and subject to these Terms unless they are expressly subject to different or superseding terms. As part of the Services and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you in connection with the App (“Push Messages”). You acknowledge that, when you use the App, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the App, including your receipt of Push Messages from CiBO. You are solely responsible for any fee, cost or expense that you incur to download, install and/or use the App on your mobile device, including for your receipt of push messages from CiBO. By using and installing the App, you agree that CiBO may change, alter, or modify the APP and the setting or configurations on your device used to store or access the App in order to allow for, or to optimize your use of, the App.
4.5 Mobile Software from Google Play. If you acquire the App from Google, Inc. or one of its affiliates (“Google”) via Google Play or its successor(s), then to the extent of any conflict between the Google Terms of Service and the Google Play Business and Program Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “Google Play Terms”), and the other terms and conditions in these Agreements, the Google Play Terms shall apply with respect to your use of any App that you acquire from Google Play. CiBO and you hereby acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by BiBO or you (or any other user) under these Agreements or the Google Play Terms.
5. Ownership and Content
5.1 Ownership of the Services. The Services, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that CiBO and/or its licensors own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Services and its content (other than Your Content), including, without limitation, the exclusive right to create derivative works. For the avoidance of doubt, the following constitutes intellectual property in and the Services that is owned by CiBO and/or its licensors: all the software, algorithms, formats, templates, methodologies, rules, characters, functionality, inventions, concepts, text, images, sound, music, videos, marks, logos, compilations, content and technology used to deliver the Service or otherwise embodied in, displayed through, or provided directly or indirectly (e.g., emails or other communications from us to you) via, the Services.
5.2 Ownership of Trademarks. CiBO’s name, “CiBO,” CiBO’s logo and all related names, logos, product and service names, designs and slogans are registered or unregistered trademarks or service marks of CiBO or its affiliates or licensors (the “Trademarks”). You may not use the Trademarks in any manner, including any use that is likely to cause confusion or that disparages or discretise us, without our consent. Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. Any use of the Trademarks, or any other displayed on the Service, will inure solely to the benefit of their respective owners.
5.3 Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback, regardless of how it is contributed, shall be the sole and exclusive property of CiBO, and CiBO may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to CiBO any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback, and to the extent any right, title or interest may not be assigned, you hereby waive and agree not to assert any such right, title or interest.
5.4 User Submitted Content.
(a) License Grant. In connection with your use of the Services, you may be able to upload, submit, store or transmit information, images or videos to or through the Services, which may include text, photos, video or other materials (“Your Content”). As a condition of your use of the Services, you grant us a nonexclusive, perpetual, irrevocable, royalty-free, fully-paid, worldwide, transferable, sublicenseable (through multiple tiers) license to copy, edit, access, use, host, cache, store, reproduce, transmit, display, publish, transmit, perform, distribute, modify, adapt, create derivative works (either alone or as part of a collective work) from, Your Content and otherwise exploit in any manner in connection with the operation and promotion of the Services and other purpose reasonable related to the business and operations of CiBO and its affiliates (the “Inbound License”). As part of granting the Inbound License, you agree that (a) the other users of the Services shall have the right to comment on and/or tag Your Content and/or to use, publish, display, modify or include a copy of Your Content as part of their own use of the Services, and (b) we have the right to make any of Your Content available to third parties, so that those third parties can distribute, make derivative works of, comment on and/or analyze your Content on other media and services (either alone or as part of a collective work). By posting or submitting Your Content through the Services, you represent and warrant that (i) you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to (A) grant the rights granted herein for Your Content, and (B) create, upload, store and/or transmit Your Content, (ii) the exercise by us and other users of the Services of the licenses granted herein by you shall not (A) infringe any third party intellectual property or proprietary rights, or (B) violate any rights of privacy or publicity, any other law, or any other right, privilege or interest of any third party. You agree that Your Content will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above.
5.5 Notice of Infringement – DMCA Policy
If you believe that any photos, videos or other User Content or works uploaded, downloaded or appearing on the Services have been copied in a way that constitutes copyright infringement, you may submit a notification to our copyright agent in accordance with 17 USC 512(c) of the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing:
(a) identification of the copyrighted work that is claimed to be infringed;
(b) identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service;
(c) information for our copyright agent to contact you, such as an address, telephone number and email address;
(d) a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law;
(e) a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and
(f) the physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.
Notices of copyright infringement claims should be sent by mail to: CiBO Technologies, Inc., 155 Second St, Cambridge, MA 02141, Attn: Legal or by email to email@example.com. It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.
A user of the Services who has uploaded or posted materials identified as infringing as described above may supply a counter-notification pursuant to sections 512(g)(2) and (3) of the DMCA. When we receive a counter-notification, we may reinstate the posts or material in question, in our sole discretion. To file a counter-notification with us, you must provide a written communication (by regular mail or by email) that sets forth all of the items required by sections 512(g)(2) and (3) of the DMCA. Please note that you will be liable for damages if you materially misrepresent that content or an activity is not infringing the copyrights of others.
6. Third Party Services and Materials
6.1 Use of Third Party Materials in the Services. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Services, you acknowledge and agree that CiBO is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you. If you have any complaints in connection with any Third Party Materials or third-party website, please contact such third party directly, or contact your state Attorney General or the Federal Trade Commission at www.ftc.gov.
7. Disclaimers, assumption of risk, Limitations of Liability and Indemnification
7.1 Disclaimers. Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis, and with all faults. Without limiting the foregoing, to the maximum extent permitted under applicable law, CiBO, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “CiBO Entities”) DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. The CiBO Entities make no warranty or representation and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Services, including any information contained therein, accessible therefrom, or available thereon; (ii) any harm to your systems, loss of data, or other harm that directly or indirectly results from your access to or use of the Services, including as a result of the occurrence of any hack, or as a result of the operation or existence of any, viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful to your property or provide access to your data or information; (iii) the operation or compatibility of the Services with any other application or any particular system or device; and (iv) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis; (v) the deletion of, or the failure to store or transmit, Your Content and other communications maintained by the Services, (vi) the actions or inactions of other users of the Services, including any User Content they make available on or accessible through the Services; (vii) the actions and inactions of any third party that you interact with through or as a result of your access to or use of the Services, including use by such third party of any data or personal information you provide to them, and (viii) that the App will be supported or maintained, or corrected in the event of any defect, bug or other performance issue. No advice or information, whether oral or written, obtained from CiBO Entities or through the Services, will create any warranty or representation not expressly made herein.
7.2 Assumption of Risk. You acknowledge that CiBO is not a lender or real estate broker representing you or another user and that CiBO is not engaged in rendering, and does not seek or claim to render, any investment, financial, legal, tax or real estate advice, or make any recommendation regarding the valuation of any other real estate advice or services via the Services. You should consult your own counsel, accountant, investment adviser or real estate agent as to the legal, tax and related matters concerning any matters related to real property. Please remember that the Services are based on an assessment of past performance and that past performance is no indication of future results. There can be no assurance that the future performance of any specific parcel of real property will be profitable or equal any corresponding indicated historical performance level(s). Under no circumstances should any information or materials presented on or through the Services be used or construed as: (a) leasing or renting, an offer to lease or rent, or negotiate the lease of real property, or a solicitation of an offer to buy, sell, lease or rent any real property; or (b) providing any real estate, investment or financial advice. The information provided via the Services should not be interpreted as a substitute for consultation or advice by qualified financial, legal, tax and real estate services professionals, and the information contained in, accessible from, or available on the Services should not be relied upon when making decisions relate to the real property. Each time to that you access and use the Services, you represent and warrant to us that you (a) have not received any remuneration to enter become a user of the Services or agree to these Terms, (b) are not using the Services for the purpose of seeking financial, legal, tax, investment or real estate advice, (c) understand that relying upon, applying or taking action upon any information accessed or made available through the Services may directly or indirectly cause harm to you, and (d) that you freely, voluntarily, with full knowledge of the possible risks associated with the foregoing, and without duress, seek to access the use the Services and accept all risks (whether economic or otherwise) that you may incur or experience as a result of your reliance upon, application of or taking action upon any information, materials, content or data that you accessed through the Services. CiBO assumes no responsibility or liability of any kind for any result or consequence related in any way, directly or indirectly, to any decision, action or inaction that you take based on the Services or any information made available to you through the Services.
7.3 Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE CiBO ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR LOSS OF OR DAMAGE TO, YOUR TRANSMISSIONS OF DATA OR INFORMATION TO THE SERVICES, OR ANY OTHER DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE, OR THE MALFUNCTION OF, THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE CiBO ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE CiBO ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE GREATER OF: (A) THE AMOUNT OF TEN DOLLARS ($10.00), OR (B) THE AMOUNT YOU PAID THE CiBO ENTITIES, IF ANY, IN THE PAST THREE (3) MONTHS BEFORE THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7.4 Indemnification. By entering into these Terms and accessing or using the Services, you agree that you shall defend, indemnify and hold CiBO Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by CiBO Entities arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) your access to or use of the Services, including any interaction with other users of the Services; (d) Your Content, (e) your use of User Content that is not Your Content, or (f) your negligence or wilful misconduct. We reserve the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obligated to indemnify any CiBO Entity. You agree to provide reasonable
8. ARBITRATION AND CLASS ACTION WAIVER
8.1 Informal Process First. You agree that in the event of any dispute between you and CiBO Entities, you will first contact CiBO and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action.
8.2 Arbitration Agreement and Class Action Waiver. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of CiBO’s services and/or products, including the Services, will be resolved by arbitration, including threshold questions of arbitrability of the Claim. You and CiBO agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. You agree that the arbitration shall be held in Boston, Massachusetts, unless the arbitrator shall determine that venue in such city is unreasonably burdensome, in which cause the arbitrator shall select a venue that is not unreasonably burdensome to both you and us. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms, you and CiBO are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, you and CiBO will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in “small claims” court, but only if your claim qualifies, your claim remains in such court and your claim remains on an individual, non-representative and non-class basis.
8.3 Costs of Arbitration. Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed $10,000, CiBO will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose.
8.4 Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out to info@cibotechnologies or to the U.S. mailing address listed in the “How to Contact Us” section of these Terms. The notice must be sent to CiBO within thirty (30) days of your registering to use the Services or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with these Terms. If you opt-out of these arbitration provisions, CiBO also will not be bound by them.
9. Additional Provisions
9.1 Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by email and/or by placing a prominent notice on the first page of the Website. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms.
9.2 Termination of License and Your Account. If you breach any of the provisions of these Terms, all licenses granted by CiBO will terminate automatically. The term of the Personal License shall commence upon the earliest moment you access the Services, including downloading, installing or using the App, and shall terminate upon the earliest of (i) your failing to comply with these Terms, (ii) CiBO terminating the Personal License in accordance with these Terms, and (iii) your requesting CiBO permanently cancel your Account. Upon the termination of the Personal License, all rights and licenses granted to your hereunder, including the Personal License, shall immediately terminate and you shall cease to access and use the Services, and shall delete and permanently purse all copies of the App from any electronic device on which you have stored or installed it. Additionally, CiBO may suspend, disable, or delete your Account and/or the Services (or any part of the foregoing) with or without notice, for any or no reason. If CiBO deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. In the event of Account deletion for any reason, CiBO may, but is not obligated to, delete any of Your Content. CiBO shall not be responsible for the failure to delete or deletion of Your Content. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by CiBO or you. Termination will not limit any of CiBO’s other rights or remedies at law or in equity.
9.3 Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to CiBO for which monetary damages would not be an adequate remedy and CiBO shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
9.4 California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
9.5 Export Laws. You agree that you will not export or re-export, directly or indirectly, the Services and/or other information or materials provided by CiBO hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
9.6 Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by CiBO but may not be assigned by you without the prior express written consent of CiBO. Any purported assignment, transfer or delegation without such consent will be null and void. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Services are operated by us in the United States. Those who choose to access the Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. We are not liable for any failure to comply with these Terms as a result of any factors or failures outside our reasonable control. These Terms are governed by the laws of the Commonwealth of Massachusetts, without regard to conflict of laws rules, and the proper venue in which each action these Terms expressly permit to be brought in court will in all cases be the state and federal courts located in Boston, Massachusetts. You and CiBO agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms. These Terms will be binding upon and inure to the benefit of the parties’ successors and permitted assigns. These Terms and any policies or operating rules published on the Services constitute the entire agreement and understanding between you and CiBO and govern your use of the Services, superseding any prior or contemporaneous agreements, communications and proposals whether oral or written, between you and CiBO (including, but not limited to, any prior version of these Terms).
9.7 How to Contact Us. You may contact us regarding the Services or these Terms at: CiBO Technologies, Inc., 155 Second St, Cambridge, MA 02141, ATTN: Legal or by email at info@cibotechnologies.