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Last Updated: November 3, 2023
Thank you for using Caper AI by Instacart! These Terms of Service (“Terms”) govern your use of the services and products manufactured and/or provided by SBOT Technologies, LLC (“Caper”), a subsidiary of Maplebear Inc. d/b/a Instacart (“Instacart”), including but not limited to the Caper AI Cart and the Caper AI Counter along with any websites, software or services provided by Caper in connection therewith (collectively, the “Services”).
By using the Services, you agree to be bound by these Terms and acknowledge and agree to the collection, use, and disclosure of your personal information in accordance with Caper’s Privacy Policy.
SECTION 9 (“DISPUTE RESOLUTION & ARBITRATION AGREEMENT”) OF THESE TERMS (THE “ARBITRATION AGREEMENT”) PROVIDES THAT ANY CLAIMS THAT YOU AND CAPER HAVE AGAINST EACH OTHER, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THESE TERMS, WILL, WITH LIMITED EXCEPTIONS, BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT, YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST CAPER ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU ALSO WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. PLEASE SEE SECTION 9 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.
Caper partners with certain retailers (each a “Retailer”) to provide customized shopping experiences through Caper’s smart shopping carts and smart self-checkout kiosks at Retailers’ physical store locations. The Services allow customers to purchase goods through AI-powered checkout technology. By continuing to use the Services, you understand and agree that each Retailer operates independently of Caper. You agree that your purchase is being made from the Retailer, the Retailer is the merchant of record, and that title to any goods passes to you when they are purchased at the Retailer’s store. You also acknowledge and agree that, except as expressly provided in these Terms or a separate agreement between you and Caper, Caper does not form any employment or agency relationship with you and does not hold title to any goods that you purchase through the Services.
You agree that Caper and/or the Retailer may utilize third-party processors to process your payment information, including your payment card data. You may be subject to the third-party processor’s terms and your information may be subject to their privacy practices. For more information about any applicable third-party processor terms, please contact the Retailer at which you have utilized the Services.
Occasionally there may be information on the Services that contains typographical errors, inaccuracies, or omissions that may relate to pricing, product descriptions, promotional offers, and product availability. You understand and agree that such information has been provided by the Retailer, manufacturers or third parties, and Caper does not assume responsibility for any such errors, inaccuracies, or omissions. Caper reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice (including while the Services are in use).
Caper grants you a limited, non-exclusive, non-transferable, and revocable license to use the Services for their intended purposes subject to your compliance with these Terms, any other Caper policies, and all applicable laws and regulations. In addition, we expect you to respect those who you encounter in your use of the Services, including Caper and Retailer personnel, and any other customers or third parties. Caper reserves the right to withhold, revoke, cancel and/or terminate your access to the Services if it determines, in its sole discretion, that you have engaged in fraud, tampering, abuse or violation of the Terms. You acknowledge that, in addition to these Terms, your use of the Services in a Retailer’s store may be subject to that Retailer’s policies and terms and conditions of service (“Retailer Terms”). Retailer Terms govern issues such as hours of operation, in-store conduct, refunds, returns, and Retailer loyalty programs.
By using the Services, you represent and warrant that you are of legal age in the jurisdiction in which you reside to form a binding contract with Caper. If you are under the age of majority in your home state, you may use the Services only with the supervision of a parent or guardian who agrees to be bound by these Terms. If you are using the Services for its intended purposes on behalf of a business or other entity, you represent and warrant that you have the necessary authority to bind that business or entity to these Terms and that you are agreeing to these Terms on behalf of that business or entity.
You may not, nor may you permit any third party, directly or indirectly to, copy, modify, distribute, sell, or lease any part of the Services. Unless such restriction is prohibited by law or you have Caper’s written permission, you may not, nor may you permit any third party, directly or indirectly to, decompile, disassemble, or otherwise attempt to reverse engineer any part (including tracking the inputs and outputs flowing through our system or application in order to mimic or recreate the system or application), or attempt to extract the source code of the Services. You may only access the Services through the interfaces that Caper provides for that purpose (for example, you may not “scrape” or “data mine” the Services through automated means or “frame” any part of the Services), and you may not, nor may you permit any third party, directly or indirectly to, work around, bypass, or circumvent any technical limitations of the services, or otherwise interfere or attempt to disrupt the Services. You further agree that you will not use the Services or any information contained therein or obtained therefrom, including any output or other information derived from the Services, to directly or indirectly create, train, test, or improve any machine learning, large language, or artificial intelligence models, or similar or competing product, service, or technology (including for research purposes, open source, or other non-commercial use).
Some software, or portions of software, in the Services may be governed by open source licenses. In that case, Caper will make such licenses available to you and, in the case of conflict between such a license and these Terms, the open source license will control but only with respect to the software, or portion of the software, to which it applies.
By using the Services, you represent and warrant that (i) you will ensure that any products are correctly scanned by you; (ii) for products that are sold by weight, you will ensure that the products are weighed correctly by you; (iii) you will not manipulate the sensors, load cell, weighing function, or other features utilized by the Services; (iv) you will pay for all products prior to leaving the store; and (v) you will comply with all laws applicable to your use of the Services. You acknowledge that Retailer personnel may conduct checks (including checking the items in your cart or kiosk and confirming you are of legal age to purchase age-restricted products), or taking other steps to verify proper use of the Services. If you have any issues with scanning or completing your purchase, you must alert a Retailer employee in the store. If you are unable to successfully process your payment for your purchase using the Services, you must complete your transaction at a register.
We’re constantly modifying and improving the Services. Caper may introduce new features, change existing features, or remove features from the Services at any time and without notice. If you provide Caper with any feedback on or comments regarding the Services, you grant Caper the right to use such feedback or comments for any purpose without restriction or payment to you.
You may have access to promotion codes, discounts, coupon codes, and offers (“Coupons”) that may provide a benefit to you when making a purchase using the Services. Unless otherwise indicated, these Coupons are offered by the Retailer, manufacturers or other third parties, not Caper. Coupons are available for a limited time only and may be subject to certain restrictions and subject to related manufacturers’ or retailers’ terms. Coupons are subject to change, cancellation, or expiration at any time, and to the terms and conditions of the relevant coupon offeror. If you do not purchase the qualifying items while the Coupon is still in effect, the Coupon’s offer will not apply. Coupons are only valid when applied to qualifying items displaying the offer and may not be combined with other promotional offers or mail-in rebates. Caper is not a retailer or seller and is not responsible for the fulfillment of Coupons unless otherwise indicated. You are responsible for, and you are required to pay any applicable tax or levy of any kind related to your use of the coupon and you acknowledge that Caper has no obligation for payment of any such tax or levy of any kind in conjunction with the distribution or use of such Coupons. When Coupons are redeemed, sales tax may be charged on the undiscounted original price of the product(s). If you return any of the products purchased with a coupon, the coupon discount or value will be subtracted from the return credit. Coupons may not be sold, copied, modified, or transferred. Coupons have no cash value and may be limited to one per user unless otherwise disclosed. Coupons are only good while supplies last and are void where restricted or prohibited by law.
Certain Retailers may allow you to utilize memberships or loyalty programs through the Services. If you utilize a Retailer membership or loyalty program through the Services, you understand that the membership or program is offered directly by the Retailer and not Caper and separate terms and conditions provided by the Retailer apply, which you should read carefully. Please note that you will need to contact the Retailer if you have any questions regarding your membership or loyalty program or the management of your account.
You may have the option to purchase prescription drug products, alcohol or other restricted products in some locations and from certain Retailers. You agree that you will comply with all applicable laws and not cause Caper, the Retailer or any third party to contravene any applicable laws. If you purchase products through the Services that require personal identification, you agree to provide valid government-issued identification which may be scanned by the Retailer to prove your identity to purchase such products. If you purchase alcohol products through the Services, you agree that you are of legal drinking age for purchasing, possessing, and consuming alcohol (i.e. 21 years of age or older in the United States, 18 years of age or older in Alberta, Manitoba, and Quebec, and 19 years of age or older in all other Canadian provinces). If you purchase any other age-restricted products through the Services, you agree that you are of legal age for purchasing, possessing, and/or consuming such age-restricted products and agree to provide valid government-issued identification which may be scanned by the Retailer to prove your eligibility to purchase such products. You also agree that the age-restricted products have not been purchased with the intent to resell or provide to someone who is not of legal age.
If you use the Services to purchase a prescription drug product for a child or other member of your household, you represent and warrant that it is your intention not to consume or use the medication but instead to transfer the medication to the ultimate consumer or user for their consumption. You also agree that Caper is not a pharmacy and that we make no referrals or recommendations as to which pharmacies you should use for prescription processing. You agree that you are solely responsible for the selection of the pharmacy dispensing the prescription. Caper makes no warranties regarding the quality of the prescription drug products or the services provided by the pharmacy. If you have any issues with the processing of your prescription, you should contact the pharmacy directly. You also agree that Caper does not provide any medical advice, diagnosis or treatment, and that neither a pharmacy-patient relationship nor a physician-patient relationship exists between Caper and you as a result of your use of the Services. We encourage you to consult with your healthcare professional or pharmacist regarding all health-related issues.
You agree that Caper does not assume responsibility for any products, content, services, websites, advertisements, offers, or information that is provided by third parties and made available through the Services, nor does Caper assume responsibility for your interactions with any third party (including a Retailer). You further agree that Caper does not warrant or guarantee that any product information contained on the Services (including but not limited to product descriptions and pricing information) or any result returned from queries made through the Services, whether made using AI powered generative experiences or otherwise, is accurate, complete, reliable, current, or error-free. All health and wellness information, nutritional content, and nutritional information is provided for informational purposes only and is not a substitute for the diagnosis, treatment and advice of a qualified health-care provider. Caper does not warrant or guarantee that any such health, wellness, or nutritional information is accurate, complete, reliable, current, or error-free.
You understand that search results obtained from the Services, whether done through AI powered generative experiences or otherwise, may be the same or similar or vary between different users and at different times, and may not necessarily be identical or consistent. You further agree that Caper does not warrant or guarantee that any material created through any AI powered generative experience does not infringe the rights of any third party in any subsequent use of the content you may make. If you purchase, use, or access any such products, content, services, advertisements, offers, or information through the Services or you engage with any third party (including a Retailer), you agree that you do so at your own risk and that Caper will have no liability based on such purchase, use, access, or engagement. Any request for refunds, returns, or other concerns with products purchased through the Services should be directed to the Retailer. Notwithstanding the foregoing, Caper reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice (including while the Services are in use).
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." CAPER DISCLAIMS ALL REPRESENTATIONS, CONDITIONS, AND WARRANTIES, EXPRESS, LEGAL, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON INFRINGEMENT. IN ADDITION, CAPER MAKES NO REPRESENTATION, WARRANTY, CONDITIONS, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES, ANY SERVICES PROVIDED BY ANY THIRD PARTIES (INCLUDING RETAILERS), OR GOODS PURCHASED THROUGH THE USE OF THE SERVICES FROM RETAILERS, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CAPER DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTIES, OR RETAILERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, ANY SERVICES PROVIDED BY THIRD PARTIES, OR ANY PRODUCTS SHOPPED FOR OR PURCHASED BY YOU, REMAINS SOLELY WITH YOU. THE SERVICES ARE SUBJECT TO PERIODIC CHANGES, WHICH MAY BE MADE AT ANY TIME AND WITHOUT NOTICE TO YOU.
CAPER DOES NOT GUARANTEE THAT THE SERVICES WILL OPERATE WITHOUT ERRORS OR THAT THE SERVICES ARE FREE OF COMPUTER VIRUSES OR OTHER MALWARE. YOU AGREE THAT CAPER WILL NOT BE RESPONSIBLE FOR ANY ECONOMIC COSTS RELATING TO YOUR USE OF THE SERVICES.
YOU AGREE THAT NEITHER CAPER (NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, RETAILERS, LICENSORS, OR SUPPLIERS) IS RESPONSIBLE FOR THE FITNESS OR CONDUCT OF ANY THIRD PARTY OR FOR ANY SERVICES PROVIDED BY ANY THIRD PARTY. NEITHER CAPER (NOR ANY OF ITS PARENT COMPANY, SUBSIDIARIES, AFFILIATES, RETAILERS, LICENSORS, OR SUPPLIERS) WILL BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH THE ACTS OR OMISSIONS OF ANY THIRD PARTY.
If you have a dispute with one or more third parties, you agree to release Caper (including its parent company, subsidiaries and affiliates, and each of their respective officers, directors, employees, agents, shareholders, retail partners, licensors, and suppliers) from any claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected to such disputes.
Furthermore, you expressly waive any rights you may have under California Civil Code Section 1542 (or analogous laws of other jurisdictions), which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that, if known by him or her must, would have materially affected his or her settlement with the debtor or released party.”
U.S. FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATION OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW
IN NO EVENT SHALL CAPER (INCLUDING ANY OF ITS PARENT COMPANY, SUBSIDIARIES AND AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, RETAIL PARTNERS, LICENSORS, AND SUPPLIERS) BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SERVICES, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR THESE TERMS, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF CAPER, OR ANY OF THEIR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL CAPER (INCLUDING ANY OF ITS PARENT COMPANY, SUBSIDIARIES AND AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, RETAIL PARTNERS, LICENSORS, AND SUPPLIERS) BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY AND/OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO PHYSICAL DAMAGES, BODILY INJURY, DEATH AND/OR EMOTIONAL DISTRESS AND DISCOMFORT) ARISING OUT OF YOUR USE OF THE SERVICES, ANY SERVICES PROVIDED BY THIRD PARTIES, OR ANY PRODUCTS SHOPPED FOR OR PURCHASED BY YOU, EVEN IF CAPER, OR ANY OF THEIR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CAPER AND ITS PARENT COMPANY, SUBSIDIARIES, AFFILIATES, RETAIL PARTNERS, LICENSORS, SUPPLIERS AND DISTRIBUTORS WILL NOT BE LIABLE FOR AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES, ANY SERVICES PROVIDED BY THIRD PARTIES, OR ANY PRODUCTS REQUESTED BY YOU OR DELIVERED TO YOU FOR MORE THAN THE GREATER OF $100 OR THE TOTAL AMOUNT PAID BY YOU ON TRANSACTIONS INITIATED THROUGH CAPER’S SERVICES DURING THE PAST 12 MONTHS IN CONNECTION WITH THE SERVICES.
U.S. FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATION OF CERTAIN LIABILITIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. THE EXCLUSIONS AND LIMITATIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
You agree to defend, indemnify and hold harmless Caper and its parent company, subsidiaries, and affiliates, and each of their respective officers, directors, employees, agents, shareholders, and Retailers (each, an "Indemnified Party") from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys’ and experts’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from: (i) your unauthorized use of the Services or from any breach by you of these Terms, including without limitation any actual or alleged violation of any law, rule or regulation; (ii) any third party’s unauthorized access or use of the Services or any goods purchased through the Services, at your direction; (iii) any dispute or issue between you and any third party, including without limitation any Retailer or their business invitees; or (iv) your subsequent use of any content created by AI powered generative experiences.
9.1. Overview of Dispute Resolution Process: This Section 9 provides for a two-part process for dispute resolution: (1) an informal dispute resolution process directly with Caper (described in paragraph 9.2, below), and if necessary, (2) a binding arbitration administered by the American Arbitration Association (“AAA”) or ADR Services Inc. (“ADR Services”), depending on where you reside. Notwithstanding these provisions, you and Caper each retain the right to seek resolution of disputes in small claims court as an alternative to arbitration.
9.2. Mandatory Informal Dispute Resolution: You and Caper agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. Therefore, before initiating formal proceedings, you and Caper agree to first attempt to work out any such dispute amicably. The initiating party must give notice to the other party in writing of its, his, or her dispute, including a written description of the dispute.
For any dispute you initiate, you agree to provide written notice to:
SBOT Technologies, LLC
c/o Maplebear Inc. dba Instacart
ATTN: Legal Department
50 Beale Street, Suite 600
San Francisco, CA 94105
Your written description must be on an individual basis and personally signed by you and not by an attorney, agent, or representative. The notice must also provide at least the following information: your name; your mailing address, the email address or phone number associated with your transaction; a detailed description of the nature and basis of the dispute, including any transaction details; and the specific relief sought and how it was calculated. For any dispute that Caper raises, we will send our written description of the dispute (including the information listed above), signed by an authorized Caper representative, by the primary contact method we have available for you. The initiating party must allow the other party 60 days to respond and attempt to resolve the dispute amicably before initiating an arbitration or other proceeding per the terms set forth below.
You and Caper agree that this informal dispute resolution process is a requirement that must be fulfilled prior to initiating an arbitration or small claims proceeding. The applicable statute of limitations period and any filing fee deadlines shall be tolled from the time the initiating party sends their written notice through the 60 day period set forth above.
9.3. Arbitration Agreement for United States Residents: For residents of the United States, if we’re unable to work out a solution amicably, both you and Caper agree to resolve through binding arbitration, rather than in court, any dispute, controversy, or claim (each, a “Claim”) arising at any time, including but not limited to those arising out of or relating to: (i) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, scope, or enforceability thereof; (ii) access to or use of the Services, including receipt of any advertising or marketing communications and/or any information contained on the Services; (iii) any transactions through, by, or using the Services, including any goods or services purchased or sold through, by, or using the Services and any consumption or use of those goods and services; (iv) any other aspect of your relationship or transactions with Caper as a consumer; or (v) Third Party Disputes (as defined in Section 9.4 below) (the “Arbitration Agreement”).
This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of these Terms.
9.4. Application to Third Parties: This Arbitration Agreement shall be binding upon, and shall include any dispute, controversy, or claim brought by or against any third parties where the underlying claims arise out of or relate to your use of the Services (“Third Party Disputes”). Third Party Disputes shall include any dispute, controversy, or claim by or against: (a) Caper’s parent company (Instacart), any of Caper’s or Instacart’s affiliates or subsidiaries, and each of their respective officers, directors, employees, agents, or shareholders; (b) any Retailers in whose retail locations you use the Services or purchase goods through the Services; (c) Caper’s vendors and service providers including without limitation: fraud prevention vendors and partners with whom we work for advertising measurement, attribution and/or analytics; (d) any companies advertising through the Services; and (e) your spouses, heirs, third-party beneficiaries and assigns. For avoidance of doubt, a Claim under this Arbitration Agreement includes all claims or disputes between you and any Retailer arising out of or related to the Services performed under this Agreement and/or any goods purchased through the Services.
9.5. Exceptions to Arbitration Agreement: Notwithstanding this mandatory Arbitration Agreement, you and Caper each retain the right: (a) to assert claims in small claims court, so long as the claims qualify and the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and, (b) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement of a party’s intellectual property rights. If a Claim qualifies for small claims court but a party commences an arbitration proceeding, you and Caper agree that either party may elect instead to have the Claim resolved in small claims court, and upon written notice of a party's election, the arbitration proceeding will be administratively closed. Any dispute about whether a Claim qualifies for small claims court shall be resolved by that court, not by an arbitrator.
9.6. Jury Trial Waiver: TRIAL BY JURY WAIVER: BY ENTERING INTO THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY CLAIM(S) WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT, YOU AND CAPER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY.
9.7. Class, Collective, and Representative Action Waiver: BY ENTERING INTO THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY CLAIM(S) WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT, YOU AND CAPER ARE EACH WAIVING THE RIGHT TO BRING, JOIN, OR PARTICIPATE IN, EITHER AS A PLAINTIFF OR CLASS MEMBER, IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION OR PROCEEDING. YOU ALSO ACKNOWLEDGE AND AGREE THAT, UNLESS YOU AND CAPER OTHERWISE AGREE IN WRITING, ANY ARBITRATION OF ANY CLAIM(S) WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. YOU FURTHER ACKNOWLEDGE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY IN YOUR FAVOR AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY YOUR INDIVIDUAL CLAIM(S), AND ANY RELIEF AWARDED CANNOT AFFECT OTHER CAPER USERS. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR ENGAGE IN ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ARBITRATION.
9.8. Arbitration Rules and Governing Law: The Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), governs the interpretation and enforcement of this Arbitration Agreement and preempts all state laws to the fullest extent permitted by law. If the FAA is found to not apply to any issue that arises from or relates to this Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence.
Except as described below for California residents, the arbitration shall be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “Rules”) in effect at the time the arbitration demand is made. The Rules are available at www.adr.org. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall apply.
The Parties agree to submit to the jurisdiction of a single neutral arbitrator (the “Arbitrator”) selected in accordance with the Rules. The Arbitrator will decide the rights and liabilities, if any, of you and Caper. The Arbitrator will have the authority to award the same damages and relief on an individual basis that a judge in a court of law can award to an individual. The Arbitrator shall follow the applicable law. The Arbitrator’s decision is final and binding on you and Caper.
Except as otherwise expressly provided herein, you and Caper agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
The arbitration will be held in the United States county where you live or use the Services, or a location you and Caper mutually agree upon in writing. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Caper submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the Rules.
The Rules will govern the payment of all filing, administrative or arbitrator fees associated with arbitration (“Arbitration Fees”) and each party will be responsible for their own Arbitration Fees under those Rules or to the maximum extent permitted by law. Notwithstanding the foregoing, either party may make a request for and will be entitled to an award of reasonable attorneys’ fees and costs–including but not limited to any Arbitration Fees–if the Arbitrator finds that the other party has asserted a claim, cross-claim or defense that is groundless in fact or law, brought in bad faith or for the purpose of harassment, or is otherwise frivolous, within the meaning of Federal Rule of Civil Procedure 11 or a state or local equivalent.
For California residents, the arbitration shall be administered by ADR Services, Inc. (“ADR Services”) under its Arbitration Rules (the “ADR Services Rules”) in effect at the time the arbitration demand is made. The ADR Services Rules are available at: https://www.adrservices.com/services/arbitration-rules/. In the event of any conflict between the ADR Services Rules and this Arbitration Agreement, this Arbitration Agreement shall apply.
For California residents, the Parties agree to submit to the jurisdiction of a single neutral arbitrator selected in accordance with the ADR Services Rules (the “ADR Arbitrator”). The ADR Arbitrator will decide the rights and liabilities, if any, of you and Caper. The ADR Arbitrator will have the authority to award the same damages and relief on an individual basis that a judge in a court of law can award to an individual. The ADR Arbitrator shall follow the applicable law. The ADR Arbitrator’s decision is final and binding on you and Caper.
For California residents, except as otherwise expressly provided herein, you and Caper agree that the ADR Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The ADR Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
For California residents, the arbitration will be held in the California county where you live or use the Services, San Francisco, California, or any other location you and Caper mutually agree upon in writing.
For California residents, the ADR Services Rules will govern the payment of all filing, administrative or arbitrator fees associated with arbitration (“ADR Services Arbitration Fees”), currently summarized on ADR Services website at https://www.adrservices.com/rate-fee-schedule/, except that Caper will reimburse you at the conclusion of the arbitration for any ADR Services Arbitration Fees that you pay in excess of the cost to file the dispute in a court of competent jurisdiction in the location of the arbitration. Any dispute about the amount or payment of this reimbursement shall be resolved by the Arbitrator. If the Arbitrator finds that you cannot afford to pay ADR Services Arbitration Fees and you cannot obtain a fee waiver from ADR Services, Caper will pay such fees for you. Notwithstanding the foregoing, either party may make a request for and will be entitled to an award of reasonable attorneys’ fees and costs–including but not limited to any ADR Services Arbitration Fees–if the Arbitrator finds that the other party has asserted a claim, cross-claim or defense that is groundless in fact or law, brought in bad faith or for the purpose of harassment, or is otherwise frivolous, within the meaning of Federal Rule of Civil Procedure 11 or a state or local equivalent.
9.9. Opt-out of Mandatory Arbitration: You can reject and opt-out of this Arbitration Agreement within 30 days of first accepting these Terms by emailing Caper (c/o Instacart) at arbitration-opt-out@instacart.com with the following information: your first and last name, your email address, the date and retailer location of your last use of the Caper Services, and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of these Terms, including the provisions regarding controlling law or in which courts any disputes must be brought.
9.10. Changes to Agreement to Arbitrate: If Caper changes this Section 9 after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject that change by sending us written notice via email as set forth above, within 30 days of the date the change is effective. Rejecting a new change, however, does not revoke or alter your prior consent or any earlier agreements to arbitrate any dispute between you and Caper, Instacart and/or its Retailers or other Third Parties identified in Section 9.4.
9.11 Severance of Arbitration Agreement: If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement.
Notwithstanding the foregoing, if the Class, Collective, Representative Action Waiver above is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
9.12. Survival of Arbitration Agreement: Except as otherwise provided in this Section 9, this Arbitration Agreement will survive any termination of the Terms or of your access to the Services, including under Section 10 or otherwise. This Arbitration Agreement will continue to apply even if you cease using the Services or they are no longer being offered to you.
You can stop using the Services at any time and without notice to us. Similarly, Caper may terminate access to the Services to you or any other users or stop offering all or part of the Services at any time without notice. In the event of Termination, Sections 1-16 survive and continue to apply to you.
To the extent permitted by applicable law, these Terms will be governed by the laws of the State of Delaware for residents of the United States and by the laws of the Province of Ontario for residents of Canada (except Quebec), without respect to its conflicts of laws principles, except the Arbitration Agreement, which is governed by the laws outlined in Section 9 of these Terms. To the extent permitted by applicable law, any claims arising out of or relating to these Terms or use of the Services that are not subject to Section 9 (Dispute Resolution & Arbitration Agreement) of these Terms shall be brought exclusively in the federal or state courts of New Castle County, Delaware, USA, for the residents of the United States, and the courts of competent jurisdiction in the City of Toronto for residents of Canada (except Quebec), and you and Caper consent to the personal jurisdiction of those courts.
For Quebec residents only, to the extent permitted by law, these Terms will be governed by the laws of the Province of Quebec without respect to its conflicts of laws principles. To the extent permitted by applicable law, any claims arising out of or relating to these Terms or use of the Services that are not subject to Section 9 (Dispute Resolution & Arbitration Agreement) of these Terms shall be brought exclusively in the courts of competent jurisdiction in the City of Montreal, and you and Caper consent to the personal jurisdiction of those courts.
These Terms, subject to any amendments, modifications, or additional agreements you enter into with Caper, shall constitute the entire agreement between you and Caper with respect to the Services and any use of the Services. If any provision of these Terms is found to be invalid by a court competent jurisdiction, that provision only will be limited to the minimum extent necessary and the remaining provisions will remain in full force and effect.
Caper’s failure to monitor or enforce a provision of these Terms does not constitute a waiver of its right to do so in the future with respect to that provision, any other provision, or these Terms as a whole.
You may not assign any of your rights, licenses, or obligations under these Terms. Any such attempt at assignment by you shall be void. Caper may assign its rights, licenses, and obligations under these Terms without limitation.
We may make changes to these Terms from time to time. When Caper does so, Caper will post the most current version of the Terms on Caper’s website and indicate the date the Terms were last updated. We recommend that you review Caper’s website from time to time for any updates. Changes to these terms will not apply retroactively. If you do not agree to the modified terms, you should discontinue your use of the Services.
Caper respects the intellectual property rights of others and has implemented a copyright and trademark policy in accordance with the Digital Millennium Copyright Act and other relevant laws. Caper will respond to valid notices of copyright or trademark infringement and reserves the right to terminate any users, at Caper’s sole discretion and without notice, who infringe copyrights or other intellectual property rights.
If you believe any content posted or made available on the Services constitutes infringement of your copyright rights, you may send a written notice of infringement to Caper’s designated Copyright Agent using the contact information listed below. In your notice, please specify the nature of the copyright infringement and include the following information: (a) an electronic or physical signature of the owner of the copyright in question or a person authorized to act on behalf of the owner of the copyright; (b) a description of the claimed infringing material as well as identification of the claimed infringing material, including the location of such material on the Services (e.g., the URL of the claimed infringing material if applicable or other means by which Caper may locate the material); (c) complete contact information, including the name of the owner of the copyright and your name, title, address, telephone number, and email address; (d) a statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (e) a statement, made under penalty of perjury, that the information provided in your notice is accurate and that you are the copyright owner or authorized to act on behalf of the owner.
Caper c/o Instacart
ATTN: Copyright Agent
50 Beale St. Suite 600
San Francisco, CA 94105
copyright@instacart.com
If you believe any content posted or made available on the Services constitutes infringement of your trademark rights, you may also send your notice to Caper's designated Copyright Agent using the contact information listed above. Please include as much detail as possible so that we may respond to your notice in a timely manner, including but not limited to description(s) of your trademark(s), your trademark registration number(s), description(s) of the products allegedly using your trademark(s) without authorization, and the location of such allegedly infringing product(s).
If you have any questions, or comments about these Terms please contact Caper at:
Caper c/o Instacart
50 Beale St. Suite 600
San Francisco, California 94105
legal@instacart.com
For customer service inquiries, please contact support@caperlab.com or contact the Retailer from whom you purchased products.
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 N. Market Blvd., Ste. N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
