Mobile App Users
The following provisions apply to users of the App:
Users of the Apple App
If you download and/or use our App(s) for iPhone or
iPad: These Terms & Conditions incorporate by
reference the Licensed Application End User License
Agreement (the “LAEULA”) published by Apple, Inc.
(located online at
http://www.apple.com/legal/itunes/appstore/dev/stdeula/).
For purposes of these Terms & Conditions, the
App is considered the “Licensed Application” as
defined in the LAEULA and Cygnus is considered the
“Application Provider” as defined in the LAEULA. If
any of these Terms & Conditions conflict with
the terms of the LAEULA, these Terms &
Conditions shall control.
Mobile Service, Internet and Service Fees
The use of the App requires use of a mobile device
and wireless mobile data service, which must be
obtained from your wireless carrier, and may require
Internet access, which must be obtained from your
service provider; you are responsible for obtaining
and paying for such additional services and
obtaining a suitable device, including without
limitation all usage charges related thereto. You
may be required to send and receive, at your cost,
electronic communications related to the App,
including without limitation, administrative
messages, service announcements, diagnostic data
reports, and App updates, from us, your mobile
carrier or third party service providers. If you do
not have an unlimited wireless mobile data plan, you
may incur additional charges from your wireless
service provider in connection with your use of the
App. You are solely responsible for obtaining any
additional subscription or connectivity services or
equipment necessary to access the App, including but
not limited to payment of all third party fees
associated therewith, including fees for information
sent to or through the App.
The App may not work with all devices or all mobile
carriers. We make no representations that the App
will be compatible with or provided by all mobile
carriers.
Links to Third-Parties’ Websites
The Site may contain links and interactive
functionality interacting with the websites of third
parties, including social sites and product
manufacturers’ sites. We are not responsible for and
have no liability for the functionality, actions,
inactions, privacy settings, privacy policies,
terms, or content of any such website. Before
enabling any sharing functions of the Site to
communicate with any such website or otherwise
visiting any such website, we strongly recommend
that you review and understand the terms and
conditions, privacy policies, settings, and
information-sharing functions of each such
third-party website. The links and interactive
functionality for third-party sites on the Site do
not constitute an endorsement by us of such
third-party sites. Other sites may link to the Site
with or without our authorization, and we may block
any links to or from the Site. YOUR USE OF
THIRD-PARTY WEBSITES AND RESOURCES IS AT YOUR OWN
RISK.
Filtering
Pursuant To 47 U.S.C. Section 230(d) as amended, we
hereby notify you that parental control protections
(such as computer hardware, software, or filtering
services) are commercially available that may assist
you in limiting access to material that is harmful
to minors. Information identifying current providers
of such protections is available on the following
website:
OnGuard Online
(http://onguardonline.gov/). Please note that we do
not endorse any of the products or services listed
at such website.
DMCA Notice - Notice & Procedure for Making
Claims of Copyright Infringement
We prohibit the submission of any copyrighted
material without the user first obtaining the prior
written consent of the copyright owner. In
particular, if you are a copyright owner or an agent
thereof and believe that any User Content or other
content infringes upon your copyrights, you may
submit a notification pursuant to the Digital
Millennium Copyright Act ("DMCA") by providing our
Copyright Agent with the following information in
writing (see 17 U.S.C 512(c)(3) for further detail):
(i) A physical or electronic signature of a person
authorized to act on behalf of the owner of an
exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed
to have been infringed, or, if multiple copyrighted
works are covered by a single notification, a
representative list of such works at the Site;
(iii) Identification of the material on the Site
that is claimed to be infringing or to be the
subject of infringing activity and that is to be
removed or access to which is to be disabled and
information reasonably sufficient to permit us to
locate the material;
(iv) Information reasonably sufficient to permit us
to contact you, such as an address, telephone
number, and, if available, an email address;
(v) A statement that you have a good faith belief
that use of the material in the manner complained of
is not authorized by the copyright owner, its agent,
or the law; and
(vi) A statement that the information in the
notification is accurate, and under penalty of
perjury, that you are authorized to act on behalf of
the owner of an exclusive right that is allegedly
infringed.
Our designated Copyright Agent to receive
notifications of claimed infringement can be reached
at
[email protected]. For clarity, only DMCA notices should go to the
Copyright Agent; any other feedback, comments,
requests for technical support, and other
communications should be directed to customer
service filling out this
form. You acknowledge that if you fail to comply with
all of the requirements herein, your DMCA notice may
not be valid.
Disclaimers of Warranties
We cannot and do not represent or warrant that the
Site, the App or its server will be error-free,
uninterrupted, free from unauthorized access
(including third-party hackers or denial of service
attacks), or otherwise meet your requirements.
THE SITE, THE APP AND ALL INFORMATION, CONTENT,
MATERIALS , PRODUCTS, SERVICES, AND USER CONTENT
INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU
THROUGH THE SITE OR THE APP (COLLECTIVELY, THE
"SITE CONTENTS") ARE PROVIDED BY CYGNUS ON AN
"AS IS," "AS AVAILABLE" BASIS, WITHOUT
REPRESENTATIONS OR WARRANTIES OF ANY KIND.
CYGNUS MAKES NO REPRESENTATIONS OR WARRANTIES OF
ANY KIND, EXPRESS OR IMPLIED, AS TO THE
OPERATION OF THE SITE OR THE APP THE ACCURACY OR
COMPLETENESS OF THE SITE CONTENTS, OR THAT
EMAILS OR TEXTS SENT FROM CYGNUS ARE FREE OF
MALWARE OR OTHER HARMFUL COMPONENTS. YOU
EXPRESSLY AGREE THAT YOUR USE OF THE SITE OR THE
APP IS AT YOUR SOLE RISK. TO THE FULL EXTENT
PERMITTED BY LAW, CYGNUS DISCLAIMS ANY AND ALL
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO
THE SITE, THE APP AND THE SITE CONTENTS, WHETHER
EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF TITLE,
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR
PURPOSE OR USE.
CERTAIN PROVIDERS OF PRODUCTS MAY SEPARATELY
PROVIDE LIMITED REPRESENTATIONS AND/OR
WARRANTIES REGARDING THEIR PRODUCTS. THIS
DISCLAIMER DOES NOT APPLY TO SUCH PRODUCT
WARRANTIES.
CYGNUS DOES NOT REPRESENT OR WARRANT THAT THE
NUTRITION, INGREDIENT, ALLERGEN, AND OTHER
PRODUCT INFORMATION ON OUR SITE IS ACCURATE OR
COMPLETE SINCE THIS INFORMATION IS PROVIDED BY
THE PRODUCT MANUFACTURERS OR SUPPLIERS AND ON
OCCASION MANUFACTURERS MAY MODIFY THEIR PRODUCTS
AND UPDATE THEIR LABELS. WE RECOMMEND THAT YOU
DO NOT RELY SOLELY ON THE INFORMATION PRESENTED
ON OUR SITE OR THE APP AND THAT YOU CONSULT THE
PRODUCT’S LABEL OR CONTACT THE MANUFACTURER
DIRECTLY IF YOU HAVE A SPECIFIC DIETARY CONCERN
OR QUESTION ABOUT A PRODUCT.
On the Site, and the App we may display names,
marks, products, advertisements, or services of
third parties, pop-up texts, or links to third-party
sites. If you decide to link to any such third-party
sites, you do so entirely at your own risk.
Jurisdictional Issues
The Site is controlled and operated by us from the
United States and is not intended to subject Cygnus
to the laws or jurisdiction of any province, country
or territory other than that of the United States.
We do not represent or warrant that the Site or any
part thereof is appropriate or available for use in
any particular jurisdiction other than the United
States. In choosing to access the Site, you do so on
your own initiative and at your own risk, and you
are responsible for complying with all local laws,
rules and regulations. We may limit the Site’s
availability, in whole or in part, to any person,
geographic area or jurisdiction we choose, at any
time and in our sole discretion.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL CYGNUS OR ITS
EMPLOYEES, DIRECTORS, OFFICERS OR AGENTS BE
LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR
DAMAGES ARISING OUT OF OR IN CONNECTION WITH:
YOUR USE OF OR INABILITY TO USE THE SITE; OR THE
AUTO-REORDER PROGRAM. THIS IS A COMPREHENSIVE
LIMITATION OF LIABILITY THAT APPLIES TO ALL
LOSSES AND DAMAGES OF ANY KIND (WHETHER GENERAL,
SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS
OF DATA, INCOME OR PROFITS), WHETHER IN CONTRACT
OR TORT, EVEN IF CYGNUS HAS BEEN ADVISED OF OR
SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH
DAMAGES. IF YOU ARE DISSATISFIED WITH: THE SITE
OR THE APP; THE AUTO REORDER PROGRAM, ANY
CONTENT ON THE SITE OR APP, OR THESE TERMS &
CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO
DISCONTINUE USING THE SITE OR APP. YOU
ACKNOWLEDGE, BY YOUR USE OF THE SITE OR APP,
THAT YOUR USE OF THE SITE OR THE APP IS AT YOUR
SOLE RISK. APPLICABLE LAW MAY NOT ALLOW THE
LIMITATION OF LIABILITY SET FORTH ABOVE, SO THIS
LIMITATION OF LIABILITY MAY NOT APPLY TO YOU,
AND YOU MAY HAVE RIGHTS ADDITIONAL TO THOSE
CONTAINED HEREIN.
EACH PROVISION OF THESE TERMS & CONDITIONS
THAT PROVIDES FOR A LIMITATION OF LIABILITY,
DISCLAIMER OF WARRANTIES, OR EXCLUSION OF
DAMAGES IS TO ALLOCATE THE RISKS UNDER THE
AGREEMENT BETWEEN YOU AND CYGNUS. THIS
ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS
OF THE BARGAIN BETWEEN YOU AND CYGNUS. THE
LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF
ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL
PURPOSE(S).
Indemnification & Defense
As a condition of the use of the Site or the App,
you agree to defend, indemnify and hold harmless
Cygnus and its respective employees, directors,
officers, agents, vendors and suppliers from and
against any liabilities, losses, investigations,
inquiries, claims, suits, damages, costs and
expenses (including, without limitation, reasonable
attorneys’ fees and expenses) (each, a "Claim")
arising out of or otherwise relating to Claims
alleging facts that if true would constitute a
breach by you of these Terms & Conditions, or
any User Content submitted by you.
Notices & Electronic Communications
Except as explicitly stated otherwise, any notices
you send to Cygnus shall be sent by mail to Cygnus
Home Service, LLC, ATTN Legal Department, P.O. Box
201, Marshall, MN 56258. In the case of notices we
send to you, you consent to receive notices and
other communications by us posting notices on the
Site, sending you an email at the email address
listed in your profile in your account, or mailing a
notice to you at your billing address listed in your
profile in your account. You agree that all
agreements, notices, disclosures and other
communications that we provide to you in accordance
with the prior sentence satisfy any legal
requirement that such communications be in writing.
Notice shall be deemed given (i) 24 hours after the
notice is posted on the Site or an electronic
message is sent, unless the sending party is
notified that the message did not reach the
recipient, or (ii) in the case of mailing, three
days after the date of mailing. You agree that a
printed version of these Terms & Conditions
and/or any notice given in electronic form shall be
admissible in judicial or administrative proceedings
based upon or relating to these Terms &
Conditions to the same extent and subject to the
same conditions as other business documents and
records originally generated and maintained in
printed form.
Notice for California Residents
Under California Civil Code Section 1789.3,
California users are entitled to the following
consumer rights notice: If you have a question or
complaint regarding the Site, please send an email
to
[email protected]. You may also contact us by writing to Cygnus Home
Service, LLC ATTN Legal Department, P.O. Box 201,
Marshall, MN 56258, or please fill out this
form. 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.
Arbitration Terms
Please read this section carefully. Except as
the Terms & Conditions otherwise provide,
you waive your rights to try any claim in court
before a judge or jury and to bring or
participate in any class, collective, or other
representative action.
Agreement to Binding Arbitration
You and Cygnus agree that in the event of any
claim, dispute, or controversy (whether in
contract, tort, statute, or otherwise) arising
out of, relating to, or connected in any way
with (1) the Site or (2) the breach,
enforcement, interpretation, application, or
validity of these Terms & Conditions, such
claim, dispute or controversy will be resolved
exclusively by final and binding arbitration,
except as otherwise set forth in these
Arbitration Terms.
Exceptions to Arbitration
Notwithstanding the foregoing, in lieu of
arbitration: (1) either you or Cygnus can bring
an individual claim in small claims court in the
United States of America consistent with any
applicable jurisdictional and monetary limits
that may apply, provided that it is brought and
maintained as an individual claim; and (2) you
agree that you or Cygnus may bring suit in court
to enjoin infringement or other misuse of
intellectual property rights.
Jury Trial & Class Action Waiver
Except as the Terms & Conditions otherwise
provide, you and Cygnus acknowledge and agree
that you are each waiving the right to a trial
by jury. The parties further agree that any
arbitration shall be conducted in their
individual capacities and not as a class action
or other representative action, and the parties
expressly waive their right to file a class
action or seek relief on a class basis. You and
Cygnus may not be plaintiffs or class members in
any purported class, collective, or
representative proceeding, and may each bring
claims against the other only in your or its
individual capacity. The arbitrator may award
declaratory or injunctive relief only on an
individual basis and only to the extent
necessary to provide relief warranted by the
individual claim.
If any court or arbitrator determines that any
term in the immediately preceding paragraph is
unenforceable for any reason as to any claim,
then the Arbitration Terms will be inapplicable
to that claim, and that claim will instead
proceed through litigation in court rather than
by arbitration, but only after the conclusion of
the arbitration of any claim or dispute that is
subject to the Arbitration Terms.
Governing Law & Arbitration Rules
The Arbitration Terms evidence a transaction in
interstate commerce and thus the Federal
Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”),
will govern the interpretation and enforcement
of this section. If the FAA is found not to
apply to any issue that arises under this
section or the enforcement of the Arbitration
Terms, then that issue shall be resolved under
the laws of the State of Delaware.
The arbitration will be conducted under the then
current and applicable rules of the American
Arbitration Association (“AAA”). The AAA rules
are available online at
www.adr.org
or by calling the AAA at 1-800-778-7879.
Initiating Arbitration
If you intend to seek arbitration you must first
send a written notice (“Notice”), by first class
or certified mail to Cygnus Home Service, LLC,
ATTN Legal Department, P.O. Box 201, Marshall,
MN 56258. If Cygnus intends to seek arbitration,
Cygnus will send a Notice to the current billing
address on your account. The Notice must
describe the nature and basis of the claim and
the specific relief sought. If the parties
cannot reach an agreement within 30 days from
the receipt of the Notice, either party may
initiate arbitration proceedings.
A form to initiate arbitration proceedings is
available on the AAA site at
www.adr.org. In addition to filing this form with the AAA,
the party initiating the arbitration must mail a
copy of the completed form to the opposing
party. You may send such copy to Cygnus Home
Service, LLC ATTN Legal Department, P.O. Box
201, Marshall, MN 56258, and Cygnus will send
such copy to the current billing address on your
account or to your attorney, if you have
retained one.
Fees
For claims of $100,000 (US Dollars) or less,
Cygnus will pay all filing, administration, and
arbitrator fees (collectively, “Filing Fees”)
unless the arbitrator determines that your claim
is frivolous. For claims over $100,000 (US
Dollars), you will be responsible for the Filing
Fees.
Location & Procedure
If your claim is for $10,000 (US Dollars) or
less, you may choose to have arbitration
conducted solely on the basis of documents
submitted to the arbitrator, via a telephone
hearing, by an in-person hearing in the county
of your residence, or as otherwise mutually
agreed to by the parties. If your claim exceeds
$10,000 (US Dollars), the location of the
arbitration and the parties’ right to a hearing
will be determined in accordance with the rules
of the AAA.
Arbitrator’s Decision
The arbitrator’s award shall be written, and
binding on the parties and may be entered as a
judgment in any court of competent jurisdiction.
We and you waive the right to seek attorneys’
fees and costs in arbitration.
Choice of Law, Forum Selection, & Jury Waiver
Except as set forth in the Arbitration Terms section
above, all matters relating to your access to or use
of the site and all matters arising out of or
related to these Terms & Conditions, will be
governed by the applicable laws of the United States
of America and the laws of the State of Delaware,
without regard to Delaware's choice of law
principles. Unless you and us agree otherwise, in
the event that it is determined or these Terms &
Conditions provide that a claim should not proceed
through arbitration, you agree that any claim or
dispute (with the exception of a claim or dispute
appropriately lodged in any small claims court in
the United States of America) shall be resolved in
the United States District Court for the District of
Delaware, and you submit to the personal
jurisdiction of that court. If subject matter
jurisdiction (including diversity jurisdiction) does
not exist in the United States District Court for
the District of Delaware for any such claim, then
the exclusive forum and venue for any such action
shall be the courts of the State of Delaware located
in New Castle County, and you submit to the personal
jurisdiction of that court. As to any proceeding in
court, you and Cygnus both waive your right to a
jury trial, unless such waiver is unenforceable.
The choice-of-law and forum-selection provisions in
this section do not apply to the Arbitration
Agreement or to any arbitrable disputes as provided
by the Arbitration Terms section. Instead, as
provided in the Arbitration Terms section, the FAA
shall apply to any such disputes.
Miscellaneous
These Terms & Conditions, including policies and
information linked from or incorporated herein or
otherwise found on the Site, constitute the entire
agreement between you and us with respect to the
Site and supersede all prior or contemporaneous
communications, agreements, and proposals with
respect to the Site. No provision of these Terms
& Conditions shall be waived except pursuant to
a writing executed by the party against whom the
waiver is sought. No failure to exercise, partial
exercise of, or delay in exercising any right or
remedy under these Terms & Conditions shall
operate as a waiver or estoppel of any right,
remedy, or condition. Except as provided in the
Arbitration Terms section, if any provision of these
Terms & Conditions is held invalid, illegal or
unenforceable, the validity, legality and
enforceability of the remaining provisions will not
be affected or impaired. You may not assign,
transfer, or sublicense any of your rights or
obligations under these Terms & Conditions
without our express prior written consent. We will
not be responsible for failure to fulfill any
obligation due to causes beyond our control. For
contractual purposes, you (1) consent to receive
communications from us in an electronic form; and
(2) agree that all terms and conditions, agreements,
notices, disclosures, and other communications that
we provide to you electronically satisfy any legal
requirement that such communications would satisfy
if they were in writing. You agree to keep your
contact information, including email address and
telephone number, current.