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.
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 at 1-888-SCHWANS (1-888-724-9267). 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.
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 by calling us at 1-888-724-9267. 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.
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.
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.
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.
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.
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.