Caper Terms of Use Agreement

Last Updated: August 16, 2021


PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THIS SITE OR OTHERWISE AGREEING TO THIS AGREEMENT, YOU UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT AND RECOGNIZE THAT YOU MAY BE WAIVING CERTAIN RIGHTS.

These Terms of Use apply to this website (the “Site”) and your use of certain products manufactured and/or provided by SBOT Technologies, Inc. (“Caper,” “we,” “us,” or “our”), including but not limited to the Caper AI Cart and the Caper AI Counter (the “Products”, and together with Site, the “Caper Services”).

THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT WHICH LIMITS YOUR RIGHTS TO BRING AN ACTION IN COURT, BRING A CLASS ACTION, AND HAVE DISPUTES DECIDED BY A JUDGE OR JURY, AS WELL AS PROVISIONS THAT LIMIT OUR LIABILITY TO YOU.

CONTINUED ACCESS AND USE OF THE CAPER SERVICES AFTER CHANGES HAVE BEEN MADE TO THIS AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THE REVISED AGREEMENT THEN IN EFFECT. YOU AGREE THAT YOU WILL REVIEW THIS AGREEMENT PERIODICALLY AND THAT YOU SHALL BE BOUND BY THIS AGREEMENT AND ANY MODIFICATIONS TO IT.

What’s Contained in This Agreement

Click on the links below to jump to that section of the Agreement.

Highlights of the Agreement

This Terms of Use Agreement (the “Agreement”) is a legal agreement exclusively between you and us governing your use of the Caper Services. By continuing to use the Caper Services, you agree that such use is legally sufficient consideration under this Agreement.

This Highlights section is intended to provide you with a basic overview of the contents of this Agreement. However, please read this entire Agreement for a complete understanding of the terms you are agreeing to. The meaning of capitalized words can be found in the full Agreement. If there is a conflict between the terms of this “Highlights” section and the terms of the full Agreement, the terms of the full Agreement control.

(a) Shopping with Caper Products in Stores

(b) Our Rights

(c) Your Use of the Caper Services

(d) International Users

(e) Important Things to Know

Read the Complete Agreement below.

Complete Agreement

Your Use of Caper Products in Stores

Caper partners with grocers and retailers (each partner, a “Store”) to provide customized shopping experiences for each Store and its customers through Caper’s smart shopping carts and smart self-checkout kiosks. Caper’s Products allow Store customers to purchase products (“Store Goods”) through effortless AI-powered checkout technology.  

By continuing to use the Caper Services, you understand and agree, that each Store operates independently of Caper. Stores may be required to comply with federal, state, and local laws, rules, regulations, and standards pertaining to the sale and marketing of their products and the maintenance of their facilities. Caper is not liable or responsible for Stores’ safety or regulatory protocols and does not verify their compliance with all applicable laws.

You acknowledge that, in addition to this Agreement, your use of Caper’s Products in a Store may be subject to that Store’s policies and terms and conditions of service (“Store Terms”). Store Terms govern issues such as refunds, returns, Store loyalty programs, etc.  You are responsible for reviewing Store Terms.

Store Goods Descriptions & Prices

Although we endeavor to ensure that any information regarding Store Goods made available through Caper’s Products is correct and up to date, we cannot guarantee and we do not warrant that information about Store Goods that is made available to you through or on the Products when you use the Products in Stores(including without limitation product descriptions, colors, photographs or price listings of Store Goods) (“Store Good Information”) is accurate, complete, reliable, current or error-free. WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY COSTS OR DAMAGES ARISING FROM OR RELATING TO INACCURATE STORE GOOD INFORMATION.

Please note that we are not obligated to rectify any discrepancies in Store Good Information. You should contact the applicable Store regarding such discrepancies. Notwithstanding the forgoing, we reserve the right to (i) change any Store Good Information at any time, and (ii) remove, and/or revise prices, fees, taxes, and/or surcharges for Store Goods without any notice or liability to you.

Payment Processors

In partnership with and at the direction of each Store, we may use third-party payment processors to process your payment information, including your payment card data. Be aware that 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 Store at which you have utilized the Caper Products.

Promotions

The Caper Services may advertise promo codes, discounts, coupon codes, and offers (“Promotions”) that provide a benefit to you when you make a purchase using one of our Products. Please note that Promotions are created and fulfilled by Stores and may be subject to separate terms and conditions set out by such Stores. Please carefully review the terms and conditions for each Promotion for further details. Caper is not responsible in any manner for the fulfillment of Promotions. You may have no right to discounts, coupons, or offers that are expired or discontinued even if they remain visible through the Caper Services.

Our Intellectual Property Rights

All names, logos, text, designs, graphics, trade dress, characters, interfaces, code, software, images, sounds, videos, photographs and other content appearing in or on the Caper Services (the “Content”) are protected intellectual property of, or used with permission or under license by Caper. Such Content may be protected by copyright, trademark, patent or other proprietary rights and laws. This includes the entire Content of the Caper Services, copyrighted and protected as a collective work. All intellectual property rights associated with the Caper Services, and related goodwill, are proprietary to us or our licensors. You do not acquire any right, title or interest in any Content by accessing or using the Caper Services. Any rights not expressly granted herein are reserved. Except as set forth below, the use of any Content available on the Caper Services is strictly prohibited.

Subject to your compliance with this Agreement, we grant you a limited license to access and use the Caper Services and their Content for personal, informational, and shopping purposes. No Content from the Caper Services may be copied, reproduced, republished, performed, displayed, downloaded, posted, transmitted, or distributed in any way without written permission of the rights owner, except that you may download or print one copy of specific Content or software made available for your downloading or printing for your personal, non-commercial use, subject to your compliance with this Agreement and retain the same solely for as long as you continue to be permitted to access the Caper Services. To use Content under such an exception, you must (1) keep any copyright, trademark, or other proprietary notices intact, (2) use such Content pursuant to any licenses associated with such Content, (3) not copy or post such Content on any networked computer or broadcast it in any media, (4) make no modifications to any such Content, and (5) make no additional representations or warranties relating to such Content. Except as otherwise expressly authorized herein or in writing by us, you agree not to reproduce, modify, rent, lease, perform, display, transmit, loan, sell, distribute, or create derivative works based (in whole or in part) on all or any part of the Caper Services or the Content.

Your Authorized Use of the Caper Services

While using the Caper Services, you are required to comply with all applicable statutes, orders, regulations, rules and other laws. You may not use the Caper Services for any fraudulent or unlawful purpose, and you may not take any action to interfere with the Caper Services or any other party’s use of the Caper Services. In addition, we expect users of the Caper Services to respect the rights and dignity of others. For example, you may not do any of the following without our consent:

Downloads

The Caper Services may allow you to download certain Content, applications, software, and other information or materials. Caper makes no representation that such download will be error or malware free or fit for a particular purpose. Certain downloads may be subject to a separate agreement either with Caper or a third party.

Descriptions, Testimonials, Opinions

The Caper Services may contain expert opinions. Information on identified as expert opinion or accessed from the Caper Services by hyperlink, represents the opinions of these respective experts, which are not necessarily those of Caper.

Caper’s Site may contain blogs with information about how to utilize the Caper Products and other relevant information regarding Caper’s business. Some of these statements are not written by us and do not represent our opinion. Other statements may be written by us, but are not a representation or warranty about a product and should not be relied upon as such.

Similarly, Caper’s Site may present you with information on events, charitable causes, and the like. This is presented for informational purposes only and should not be considered our endorsement of same.

The Caper Services may allow you to leave product reviews, opinions, or testimonials, all of which is User Content. If you leave a review on another website, we may (but are not required to) reach out with a separate agreement to further define our rights in the User Content.

Descriptions and graphic representations of products on the Caper Services are for informational purposes only and may not completely reflect the Products current appearance or functionality. We reserve the right to change Product descriptions at any time, and we are not responsible for variations between a Product description and the actual product. Technological issues, such as your device settings, may alter how a Product appears on Caper’s Site.

WE HEREBY DISCLAIM ANY REPRESENTATION OR WARRANTY CONTAINED IN ANY TESTIMONIAL, BLOG, DESCRIPTION, OR OPINION POSTED ON THE SITE TO THE MAXIMUM EXTENT ALLOWED BY LAW.

Third-Party Content and Links

Any information, statements, opinions or other information provided by third parties and made available through the Caper Services are those of the respective author(s) and not us. We do not guarantee the validity, accuracy, completeness or reliability of any opinion, advice, service, offer, statement or other third party Content through the Caper Services.

Through the Caper Services, we may provide, solely as a convenience to users, links to websites, social media pages, mobile applications or other services operated by other entities. If you click these links, you will leave the Caper Services. If you decide to visit any external link, you do so at your own risk, and it is your responsibility to take all protective measures to guard against viruses or other destructive elements. We do not make any warranty or representation regarding, or endorse or otherwise sponsor, any linked websites or the information appearing thereon or any of the products or services described thereon. Links do not imply that we are legally authorized to use any trademark, trade name, logo or copyright symbol displayed in or accessible through the links; or that any linked website is authorized to use any of our trademarks, logos or copyright symbols.

We may maintain a presence on and link to social media websites, including Facebook, LinkedIn, Google Plus, Twitter, YouTube, Vine, TikTok, Pinterest and Instagram, and others (collectively, “Social Media Pages”), to provide a place for people to learn more about us and our products and to share experiences with our products. When you visit these Social Media Pages, you are no longer  the Caper Services, but rather a website operated by a third party. All comments, visuals and other materials posted by visitors to our Social Media Pages do not necessarily reflect our opinions, values or ideas. All visitors to our Social Media Pages must comply with the respective social media platform’s terms of use.

YOU AGREE THAT YOUR USE OF THIRD-PARTY WEBSITES, APPLICATIONS, SERVICES AND RESOURCES, INCLUDING WITHOUT LIMITATION YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH THIRD PARTIES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.

Updates to this Agreement

We may revise or otherwise change or update this Agreement from time to time. We will use reasonable efforts to notify you of such changes. However, please check the “Last Updated” legend at the top of this page to see when this Agreement was last revised. When changes are made to this Agreement they will become immediately effective when published on this page unless otherwise noted. We encourage you to periodically review this Agreement―there may have been changes to our policies that may affect you. If you do not agree to the Agreement as modified, then you must discontinue your use of the Caper Services. Your continued use of the Caper Services will signify your continued agreement to this Agreement as revised. We will make reasonable efforts to notify you of material changes to this Agreement. Such efforts might include posting notice on the Site or displaying notice through the Products.

We may assign this Agreement at any time with or without notice to you. You may not assign or sublicense this Agreement or any of your rights or obligations under this Agreement without our prior written consent.

Other Policies

This Agreement applies exclusively to your access to, and use of, the the Caper Services and does not alter in any way the terms or conditions of any other agreement you may have with us for products, services, programs or otherwise. Additional policies and terms may apply to use of specific portions of the Caper Services and to the purchase of certain merchandise or services and are included as part of this Agreement whether they reference this Agreement or not.

Other types of agreements and policies that you may be subject to include, but are not limited to:

We have also adopted a Privacy Policy that you should refer to in order to fully understand how we use and collect information. To learn about our privacy practices, please refer to our Privacy Policy.

Should we employ you, none of the materials provided on the Caper Services constitute or should be considered part or of an employment contract or an offer for employment.

Disputes, Arbitration and Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. YOU MAY CHOOSE TO BE REPRESENTED BY A LAWYER IN ARBITRATION OR PROCEED WITHOUT ONE. THIS ARBITRATION PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

Any dispute, claim or controversy arising out of or relating to this Agreement, other agreements on the Site, or the Privacy Policy, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be either determined by binding arbitration in New York, New York, before one arbitrator or submitted to small claims court in New York, New York . If the arbitrator finds this location to be unreasonably burdensome to you, a new location may be selected or arbitration may be conducted over the phone, using video conferencing, or similar. You may be entitled to an in-person hearing near your place of residence. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Any arbitration arising out of or related to this Agreement shall be conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the effective date of this Agreement, including Rules 16.1 and 16.2 of those Rules.

No Class Actions: YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.

Seeking Arbitration: If you elect to seek arbitration or file a small claim court action, you must first send to us, by certified mail, a written notice of your claim (“Notice”). The Notice to us must be addressed to: 230 West 39th Street, New York, New York 10018. If we initiate arbitration, we will send a written Notice to an email address you have previously provided to us, if available. We may also use any other means to contact you, including a message in your Account. A Notice, whether sent by you or by us, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If you and we do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or us may commence an arbitration proceeding or file a claim in small claims court. Arbitration forms can be downloaded from the JAMS website (www.jamsadr.com). If you are required to pay a filing fee, after we receive Notice that you have commenced arbitration, we will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000 or the arbitrator determines the claims are frivolous, in which event you will be responsible for filing fees.

Hearing: If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video hearing, or by an in-person hearing as established by the JAMS Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the JAMS Rules. In the event that the arbitration will be conducted solely on the basis of submitted documents, the arbitrator’s decision and award will be made and delivered within six (6) months of the selection of the arbitrator, unless extended by the arbitrator. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules.

Award: In the event arbitration awards you damages of an amount at least $100 greater than our last documented settlement offer, we will pay your awarded damages or $2,500, whichever is greater.

Injunctive Relief: Notwithstanding the foregoing, you and we both agree that you or we may sue in court to enjoin infringement or other misuse of intellectual property rights or in other scenarios where injunctive relief is appropriate. In the event a court or arbitrator having jurisdiction finds any portion of this Agreement unenforceable, that portion shall not be effective, and the remainder of the Agreement shall remain effective. No waiver, express or implied, by either party of any breach of or default under this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.

Confidentiality: The parties shall maintain the confidential nature of the arbitration proceeding and the Award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.

Governing Law and Rules: This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of New York, exclusive of conflict or choice of law rules. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). In any arbitration arising out of or related to this Agreement, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect or consequential damages, including damages for lost profits. The parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement.

International Users

WE MAKE NO REPRESENTATION THAT THE INFORMATION AND MATERIALS ON THE CAPER SERVICES, INCLUDING WITHOUT LIMITATION THE INFORMATION AND OTHER MATERIALS PROMOTING THE PRODUCTS IDENTIFIED ON THAT SITE, ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS OTHER THAN THE LOCATION FOR WHICH THE CAPER SERVICES ARE DIRECTED. WE DO NOT REPRESENT OR WARRANT THAT THE CAPER SERVICES OR ANY PART THEREOF IS APPROPRIATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION OTHER THAN THE UNITED STATES. Those who choose to access the Caper Services do so on their own initiative and at their own risk, and are responsible for complying with all local statutes, orders, regulations, rules, and other laws. You are also subject to United States export controls and are responsible for any violations of such controls, including without limitation any United States embargoes or other federal rules and regulations restricting exports.

Despite the above, as a consumer you will benefit from any mandatory provisions of the law of the country in which you are a resident. Nothing in this Agreement affects your rights as a consumer to rely on such mandatory provisions of local law. The local law of your jurisdiction may entitle you to have a dispute relating to this Agreement heard by your local courts. This Agreement does not limit any such rights that you have that apply. HOWEVER, BY ENTERING INTO THIS AGREEMENT, WE DO NOT CONSENT TO THE JURISDICTION OF ANY COURTS OTHER THAN THOSE REFERENCED IN THIS AGREEMENT AND RESERVES THE RIGHT TO CONTEST THAT IT IS NOT SUBJECT TO THE JURISDICTION OF ANY OTHER COURT. We may limit the Caper Services’ availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion. This Agreement, as well as all other documents related to it, including notices and correspondence, will be in the English language only.

THE FOLLOWING TERMS AND CONDITIONS APPLY TO YOU, AND SUPERSEDE CONFLICTING TERMS IN THE AGREEMENT, IF YOU ARE A RESIDENT OF THE NAMED JURISDICTION OR TO THE EXTENT REQUIRED BY APPLICABLE LAW:

CANADA

L'acheteur confirme son intention expresse que cet accord, ainsi que tous les documents connexes, soient rédigés en langue anglaise uniquement, y compris tous les avis et la correspondance.

Quebec Customers: For Quebec customers (or customers from other Canadian provinces where applicable) we will, if required, send at least 30 days before the amendment comes into force, a written notice drawn up clearly and legibly, setting out the new clause only, or the amended clause and the clause as it read formerly, the date of the coming into force of the amendment and the customer’s right to refuse the amendment and rescind or, in the case of a contract involving sequential performance, cancel the contract without cost, penalty or cancellation indemnity by sending us a notice to that effect no later than 30 days after the amendment comes into force, if the amendment entails an increase in the customer’s obligations or a reduction in our obligations.

Dispute Resolution: The arbitration requirements of this Agreement will not apply to you if any such provision is unenforceable under the laws of your Canadian province of residence.

Cancellation Rights: Residents of certain provinces may have the right to cancel the provisions of certain purchases as required by local law. We will honor such cancellation rights.

Privacy and Consumer Complaints: Under relevant consumer protection laws, you are entitled to the following consumer rights notice: If you have a question or complaint regarding the Caper Services, please send an e-mail to : support@caperlab.com . You may also contact us by writing to : 230 West 39th Street, New York, New York 10018 .

EUROPEAN UNION

Children: You may not use the Caper Services if you are under the age of 16.

Exceptions to Liability Limitations: Nothing in this Agreement excludes or limits our liability for death or personal injury arising from our negligence, or fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by applicable law.

ARBITRATION MAY NOT APPLY TO YOU IF YOU ARE A RESIDENT OF THE EUROPEAN UNION AND SUBJECT TO THE ALTERNATIVE DISPUTE RESOLUTION DIRECTIVE (2013/11/EU) AND THE ONLINE DISPUTE RESOLUTION REGULATION (EU 524/2013) (AND ANY IMPLEMENTING REGULATIONS IN EACH MEMBER STATE OF THE EU), THE AGREEMENT TO ARBITRATE IN THE AGREEMENT WILL NOT APPLY TO YOU IF NOT PERMITTED BY LAW.

UNITED KINGDOM

Children: You may not use any Site if you are under the age of 16.

Exceptions to Liability Limitations: Nothing in this Agreement excludes or limits our liability for death or personal injury arising from our negligence, or fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by applicable law.

ARBITRATION MAY NOT APPLY TO YOU IF YOU ARE A RESIDENT OF THE UNITED KINGDOM AND SUBJECT TO THE ALTERNATIVE DISPUTE RESOLUTION DIRECTIVE (2013/11/EU) AND THE ONLINE DISPUTE RESOLUTION REGULATION (EU 524/2013) (OR ANY SUCCESSOR TO THESE ENACTED BY THE UK POST BREXIT). THE AGREEMENT TO ARBITRATE IN THIS AGREEMENT WILL NOT APPLY TO YOU IF NOT PERMITTED BY LAW.

Accessibility

We are committed to making Site accessible for all users and will continue to take steps necessary to ensure compliance with applicable laws. If you have difficulty accessing any content, feature, or functionality of the Caper Services, please contact us.

Contacting Us

If you have questions about this Agreement, or if you have technical questions about the operation of the Caper Services, please contact us via email at support@caperlab.com or by writing us at 230 West 39th Street, New York, New York 10018. Similarly, if you have any questions or comments about our Caper or our products or have other customer service needs, please send an email to support@caperlab.com.

Additionally, under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

ACTIVE 59355240v4