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For Terms of Service in Austria (EN), click here.
Für die Nutzungsbedingungen in Österreich (DE) klicken Sie hier.
For Terms of Service in North America (EN), click here.
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 Australia Pty. Ltd (ACN 675 621 235) (“Caper”), 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 any personal information will be collected, used, and disclosed in accordance with Coles 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. 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.
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 or its affiliates 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, including without limitation Caper Exclusive 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, goods and services taxes or similar taxes 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. 18 years of age or older in Australia). 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 solely enables users to purchase products from Retailers as applicable and Retailers set out their own product information including product descriptions and pricing information. To the extent permitted by applicable law, Caper does not warrant or guarantee that any product information contained on the Services 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." TO THE FULL EXTENT PERMITTED BY LAW, AND SUBJECT TO ANY NON-EXCLUDABLE CONSUMER GUARANTEES AVAILABLE UNDER APPLICABLE LAWS, 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, AND TO THE FULL EXTENT PERMITTED BY LAW, AND SUBJECT TO ANY NON-EXCLUDABLE CONSUMER GUARANTEES AVAILABLE UNDER APPLICABLE LAWS, 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.
AS A CONSUMER IN AUSTRALIA, UNDER CONSUMER PROTECTION LEGISLATION IN AUSTRALIA, WE GIVE CERTAIN NON-EXCLUDABLE GUARANTEES IN RESPECT OF GOODS AND SERVICES WE SUPPLY TO YOU AND YOU HAVE CERTAIN NON-EXCLUDABLE RIGHTS IF THOSE GUARANTEES ARE NOT MET, WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED (NON-EXCLUDABLE RIGHTS). NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE, RESTRICT OR MODIFY YOUR NON-EXCLUDABLE RIGHTS. THE LIMITATIONS ON AND EXCLUSIONS OF CAPER'S LIABILITY CONTAINED IN THESE TERMS OF SERVICE APPLY ONLY TO THE FULL EXTENT PERMITTED BY LAW.
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, INCLUDING RETAILERS. 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.
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.
TO THE FULLEST EXTENT PERMITTED BY 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.
TO THE FULLEST EXTENT PERMITTED BY 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 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 ONLY APPLY TO THE EXTENT PERMITTED 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 (except to the extent caused or contributed to by Caper or Instacart), 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 (except to the extent caused or contributed to by Caper or Instacart); 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 International Chamber of Commerce ("ICC") Rules of Arbitration, depending on where you reside. Notwithstanding these provisions, you and Caper each retain the right to seek resolution of disputes in a court of law 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.
9.3. Notice: For any dispute you initiate, you agree to provide written notice to:
SBOT Australia Pty Ltd
Level 19, 181 William Street
Melbourne, VIC 3000
ATTN: Legal Department
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 court 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.
9.4. 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 a court of law; 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 court but a party commences an arbitration proceeding, you and Caper agree that either party may elect instead to have the Claim resolved in a court of law, and upon written notice of a party's election, the arbitration proceeding will be administratively closed.
9.6. Arbitration Rules and Governing Law: Australian Residents
The arbitration shall be administered by the International Chamber of Commerce (“ICC”) under the ICC Arbitration Rules in effect at the time the arbitration demand is made. The ICC Arbitration Rules are available at: https://iccwbo.org/dispute-resolution/dispute-resolution-services/arbitration/rules-procedure/2021-arbitration-rules/. In the event of any conflict between the ICC Arbitration Rules and this Arbitration Agreement, this Arbitration Agreement shall apply.
The parties agree to submit to the jurisdiction of a single neutral arbitrator selected in accordance with the ICC Arbitration Rules (the “ICC Arbitrator”). The ICC Arbitrator will decide the rights and liabilities, if any, of you and Caper. The ICC 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 ICC Arbitrator shall follow the applicable law. The ICC Arbitrator’s decision is final and binding on Caper and you.
Except as otherwise expressly provided herein, Caper and you agree that the ICC 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 ICC 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 place of arbitration will be Sydney, Australia, or any other location you and Caper mutually agree upon in writing.
The ICC Arbitration Rules will govern the payment of all filing, administrative or arbitrator fees associated with arbitration (“ICC Arbitration Fees”), currently summarized on the ICC website at https://iccwbo.org/dispute-resolution/dispute-resolution-services/arbitration/rules-procedure/2021-arbitration-rules/#block-accordion-62, except that Caper will reimburse you at the conclusion of the arbitration for any ICC 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 ICC Arbitrator.
9.7. 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.
9.8. 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.
9.9 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.
9.10. 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, by the laws of the Province of Ontario for residents of Canada (except Quebec), and by the laws of New South Wales, Australia for residents of Australia, 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, the courts of competent jurisdiction in the City of Toronto for residents of Canada (except Quebec), and the courts of New South Wales, Australia for residents of Australia, 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:
SBOT Australia Pty Ltd
Level 19, 181 William Street
Melbourne, VIC 3000
legal@instacart.com
For customer service inquiries, please contact [support@caperlab.com] or contact the Retailer from whom you purchased products.
