Last Updated: April 21, 2018
Welcome, and thank you for your interest in Sisyphus Industries LLC. (“Sisyphus Industries,” “we,” or “us”) and our website at Sisyphus-Industries.com and subdomains, along with our related websites, networks, software applications, and hardware products and accessories. These Terms of Purchase and Service are a legally binding contract between you and Sisyphus Industries regarding your purchase of any product from Sisyphus Industries and your use of the Service (defined below).
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING ON THE “BUY”, “BUY NOW”, “PURCHASE”, “PAY NOW” OR OTHER SIMILAR BUTTON TO MAKE A PURCHASE, OR BY CLICKING “I ACCEPT,” OR BY DOWNLOADING OR INSTALLING SOFTWARE OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR PURCHASES AND USE OF THE SERVICE, YOU AGREE TO BE BOUND, BY THE FOLLOWING TERMS AND CONDITIONS (“TERMS”).
IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU SHOULD NOT PURCHASE ANY PRODUCT AND YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR PURCHASE OF A PRODUCT AND USE OF THE SERVICE, AND SISYPHUS INDUSTRIES’S PROVISION OF ANY PRODUCT OR THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY SISYPHUS INDUSTRIES AND BY YOU TO BE BOUND BY THESE TERMS.
IF YOU ARE MAKING PURCHASES OR ACCESSING AND USING THE SERVICE FROM THE EUROPEAN UNION, CERTAIN SEPARATE TERMS APPLY AS INDICATED BELOW.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 5.7, and except if you are in the European Union, you agree that disputes arising under these Terms (including any dispute arising from your purchase or use of the Product) will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND SISYPHUS INDUSTRIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 5.7.)
1 SECTION 1 – OVERVIEW
1.1 Overview. Sisyphus Industries makes available kinetic art tables, and related spare parts, materials, designs, and accessories (collectively referred to as the “Product” in these Terms). To order a Product, you must register for an account. You may choose to download and use our mobile application which allows higher level control of the wireless hardware product.
1.2.1 You must be at least 13 years old to use the website or mobile application.
1.2.2 Purchases. You must be at least 18 years old to make purchases from Sisyphus Industries. By making a purchase from Sisyphus Industries, you represent and warrant to us that you are at least 18 years old.
1.2.3 Entity Users. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
1.3 Accounts and Registration. To purchase a Product you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password.
1.5 Trade marks. Sisyphus and the Sisyphus logo are trademarked, and are the sole property of Sisyphus Industries LLC, all rights reserved.
1.6 Patent pending. The Sisyphus mechanism is patent pending.
2 SECTION 2 – TERMS APPLICABLE TO THE SERVICE
2.1 Feedback. If you choose to provide input and suggestions to Sisyphus Industries regarding any matter, including any aspect of a Product (“Feedback”), then you hereby grant Sisyphus Industries an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to use the Feedback in any manner and for any purpose, including to improve the Products and the Service, and to create other products and services.
2.2 User Content
2.2.1 User Content Generally. Certain features of our website may permit users to upload content to our website, including messages, designs, specifications, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on public portions of our website, e.g. the Forum. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to our website.
2.2.2 Limited License Grant to Sisyphus Industries. By submitting, posting, publishing, or sharing User Content to a public area of our website (e.g. the Sisyphus Industries community forum), you grant Sisyphus Industries a worldwide, non-exclusive, royalty-free, fully paid right and license to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part.
2.3 Limited License Grant to Other Users.
2.3.1 By submitting, posting, publishing, or sharing User Content with other users of our website, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms, any additional terms you agree to at the time that you upload that User Content, and the functionality of our website. Sisyphus Industries may allow you to require payment from other users of our website in exchange for use of your User Content. Such an arrangement will be conditional on your acceptance of additional license terms in a separate document or agreement.
2.4 User Content Representations and Warranties. Sisyphus Industries disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of submitting, posting, publishing, or sharing User Content. By submitting, posting, publishing, or sharing User Content, you affirm, represent, and warrant that:
2.4.1 you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Sisyphus Industries and users of our website to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Sisyphus Industries, our website, and these Terms;
2.4.2 your User Content, and the use of your User Content as contemplated by these Terms, complies with the requirements under Section 2.8 (Prohibited Conduct).
2.4.3 Notwithstanding Section 2.3.1, if you submit, post, publish, or share any of your designs to firstname.lastname@example.org, then: (a) you grant other users of our website a non-exclusive license to use and modify the design for non-commercial purposes, to submit, post, publish, or share any modifications on any website or platform maintained by Sisyphus Industries, (b) you retain your right to license your designs to other people in your sole discretion; and (c) you represent that you are the sole and exclusive owner of all rights in the designs.
2.5 User Content Disclaimer. Sisyphus Industries is under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Sisyphus Industries may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment may violate these Terms or is otherwise objectionable. You understand that when using our website you may be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Sisyphus Industries with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Sisyphus Industries does not permit copyright-infringing activities on our website.
2.7 Digital Millennium Copyright Act
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on our website, you may contact our Designated Agent at the following address:
Sisyphus Industries LLC
ATTN: Copyright Notification
451 Taft St NE suite 1
Minneapolis, MN 55413, USA
Any notice alleging that materials hosted by or distributed through our website infringe intellectual property rights must include the following information:
184.108.40.206 an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
220.127.116.11 a description of the copyright-protected work or other intellectual property right that you claim has been infringed; a description of the material that you claim is infringing and where it is located on our website;
18.104.22.168 your address, telephone number, and email address;
22.214.171.124 a statement by you that you have a good faith belief that the use of those materials on our website is not authorized by the copyright owner, its agent, or the law; and
126.96.36.199 a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
2.7.2 Repeat Infringers. Sisyphus Industries will promptly terminate without notice the accounts of users that are determined by Sisyphus Industries to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had User Content removed from our website at least twice.
2.8 Prohibited Conduct.
BY USING OUR WEBSITE YOU AGREE NOT TO:
2.8.1 use our website for any illegal purpose or in violation of any local, state, national, or international law;
2.8.2 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
2.8.3 post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
2.8.4 interfere with the operation of our website or any user’s enjoyment of our website, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of our website; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide our website, or violating any regulation, policy, or procedure of any such network, equipment, or server;
2.8.5 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, providing incorrect information when creating or modifying a Service account, or falsifying your age or date of birth;
2.8.6 sell or otherwise transfer the access to our website granted under these Terms or any materials available via our website or any right or ability to view, access, or use any material available via our website.
2.9 Third Party Terms. Sisyphus Industries may provide tools that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Sisyphus Industries with an account on the third party service, such as Twitter for Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under Sisyphus Industries’ control, and Sisyphus Industries is not responsible for any third-party service’s use of your exported information. Our website or mobile application may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
3 SECTION 3 – PURCHASES
3.1 Availability. Purchases of the Product are subject to estimated availability as described on the Sisyphus Industries website at the time that you place your order and updated from time to time via communications on community.Sisyphus-Industries.com or through email.
3.2 Pricing. Sisyphus Industries reserves the right to determine pricing for the Product, as well as charges for shipping the Product. Sisyphus Industries, at its sole discretion, may make promotional offers with different features and different pricing to any of Sisyphus Industries’ customers. These promotional offers, unless made to you, will not apply to your offer or these Terms. All orders for the Product must be paid in full, including shipping, and taxes, duties, etc. prior to delivery by Sisyphus Industries of the Product to you. Sisyphus Industries reserves the right to suspend delivery and performance until full payment is received.
3.3 Shipping Charges. We list shipping charges and taxes, customs, etc. for each country on our website, and you must pay all shipping charges for the location of the address you provide. You must also pay all tariff, import, customs, tax, and other charges applicable in your jurisdiction. We will collect Minnesota sales tax if you pick up your Product at our Minneapolis location or your Product is shipped to a Minnesota address. These charges are your responsibility and will be collected when you place your order. If shipping and other costs to the address that you provide for an accepted pre-order are higher than the shipping costs you paid at the time that you offered to purchase the Product, Sisyphus Industries may, in its sole discretion, require you to pay additional shipping fees or refund the full amount you paid to Sisyphus Industries for the purchase.
3.4 General Payment Terms. In order for your offer to purchase a Product to be eligible for Sisyphus Industries’ acceptance, you must pay the amount for the Product elected by you as set forth on the relevant payment page by credit card through Stripe, or another payment method designated on our website. Payment does not guarantee acceptance by Sisyphus Industries. All prices and fees are in U.S. Dollars and are non-refundable except as expressly described in these Terms.
3.5 Authorization. You authorize Sisyphus Industries to charge all sums for the orders that you make as described in these Terms or published by Sisyphus Industries, to the payment method specified in your account.
3.6 Online Payment Transactions. You should be aware that online payment transactions are subject to validation checks by your card issuer and we are not responsible if your card issuer declines to authorize payment for any reason. Please note that it is possible that your card issuer may charge you an online handling fee or processing fee. We are not responsible for this.
3.7 Orders. Your order constitutes an offer to purchase a Product, and all orders are subject to Sisyphus Industries’ acceptance. Except to the extent prohibited by applicable law, Sisyphus Industries may accept, decline, or place limits on your order for any reason. You do, however, acknowledge that by clicking on the “Buy”, “Buy Now”, “Purchase”, “Pay Now” or other similar button, you enter into an obligation to pay for the Product. Your order is complete when Sisyphus Industries informs you that your shipment is ready and you provide final approval to ship. You will be required to confirm that you still wish to purchase the Product (“Order Confirmation”). Please review the Product information carefully before you provide your final approval; Products may change significantly from the time that you submitted your offer to Sisyphus Industries and the time that the Product is ready for shipment. If Sisyphus Industries rejects your offer, Sisyphus Industries will, as your sole and exclusive remedy and Sisyphus Industries’ sole and exclusive liability, refund the amount you paid as described in Section 3.13. Sisyphus Industries will send you an email to the address provided by you once the Product is ready for shipment. If you have any questions, comments, or concerns regarding Sisyphus Industries’ pre-order acceptance policy, or if you believe that your pre-order was rejected in error, please contact Sisyphus Industries at email@example.com. If you do not provide your shipping information within 30 days of Sisyphus Industries’ request, Sisyphus Industries may, at its sole discretion, provide you a full refund of the amount you paid or continue to attempt to contact you. Sisyphus Industries will make reasonable efforts to contact you to provide a refund after that 30 day period, but if Sisyphus Industries does not receive a response from you within 90 days of Sisyphus Industries’ initial request for your shipping address, or if Sisyphus Industries is not able to process your refund after that 30 day period (for example, due to a cancelled credit card), then Sisyphus Industries will treat the amount that you paid as unclaimed property in accordance with applicable law.
3.8 Order Contracts in the European Union. If you are located in the European Union, and if we accept your offer to purchase a Product and are ready to ship the Product, we will confirm our acceptance by sending you a confirmation that the Product is ready for shipment. You will then be required to confirm that you still wish to purchase the Product (“Order Confirmation”). The contract between you and us in relation to your purchase of the Product (“Order Contract”) will be formed only once you send us the Order Confirmation. The Order Contract will relate only to the Product that has been confirmed in the Order Confirmation. We will not be obliged to supply any other Product which may have been part of your order until such other Product has been confirmed in a separate Order Confirmation. If you place a pre-order before the availability date shown on the relevant Product page (and we accept it), the pre-ordered Product will be shipped on the availability date and delivered by the delivery date set out in the Order Confirmation. Please print a copy of your Order Confirmation, including these Terms, for your records.
3.9 Export Control. You acknowledge that the Product may be subject to export control laws and other laws and regulations of the United States and other countries, and that if Sisyphus Industries ships the Product to you, the Product may be impounded or otherwise confiscated by customs or other authorities. You are responsible for compliance with all applicable export control laws and regulations. You represent that you will not export, re-export, or transfer indirectly or directly any Product outside of the United States without obtaining proper authorization from the applicable government agencies. Without limiting the immediately preceding sentence, you will not export, re-export, or transfer directly or indirectly any Product to: (i) an embargoed/terrorist supporting country, including Cuba, Iran, North Korea, Syria, Sudan, or any other such country as determined by the U.S. government; (ii) a person or entity barred by the U.S. Government on export activity lists, including persons or entities on the Treasury Department Specially Designated National List, Entities List, and Denied Persons List; or (iii) any destination for an end use that is prohibited by applicable law. You will defend and hold Sisyphus Industries harmless against all claims, damages, or liability resulting from breach of the foregoing.
3.10 Title, Risk of Loss. If you are not located in the European Union, title to the Product will pass to you when the Product is delivered to the carrier. If you are located in the European Union, title to the Product will pass to you when the Product is delivered to you by the carrier, after which all risk of loss or damage to any Product will be yours.
3.11 Delivery. Sisyphus Industries will attempt in good faith to deliver the Product in accordance with your order or any other schedule Sisyphus Industries may provide to you when placing the order, but Sisyphus Industries will not be responsible or liable for any delays or failure in such delivery. Sisyphus Industries expressly reserves the right to effect delivery of the Product ordered in any number of separate shipments, and the modes of transport and carriers will be decided at Sisyphus Industries discretion. During any period of shortage, Sisyphus Industries may allocate its supply of the Product in any manner Sisyphus Industries deems appropriate. Your order will be delivered to the delivery address you specify when placing your order. An adult must be present to sign for delivery. If your delivery address is geographically remote or otherwise difficult to deliver to, it is possible that we may not be able to deliver there. If that is the case, we will notify you. Orders cannot be delivered to PO Box or similar addresses. Sisyphus Industries will not be responsible or liable for any delay or failure to deliver due to any cause which is unavoidable or beyond Sisyphus Industries’ reasonable control. In such cases, Sisyphus Industries will have the right, at its option, without penalty or any liability for breach, to terminate all or any part of any order or to reschedule delivery within a reasonable time.
3.12 Inspection. You should carefully examine all deliveries of the Product upon delivery, and notify Sisyphus Industries of any alleged error, shortage, defect or non-conformity of the Product within 5 days after receipt. Your failure to examine and report will constitute a waiver of any claim against Sisyphus Industries arising under these Terms or by law with respect to any such error, shortage, defect, or non-conformity reasonably discoverable by examination. You agree to make any and all claims for damage or loss in transit against the carrier. The provision of this Section 3.12 will not apply to purchases made in the European Union.
3.13 Refunds Before Shipment. Sisyphus Industries allows you to request a refund for a Product until you provide final approval to ship. Refunds may take up to 10 business days to process. For more details on our refund policies, please visit our FAQ page. For European consumers please see Sections 3.15 through 3.18 for additional details of your refund rights.
3.14 Consumer Cancellation Rights—European Union. If you are located in the European Union, you may cancel your Order Contract at any time before the Product is delivered and up to 14 days afterwards, beginning on the day after the Product (in its entirety) is delivered to you. If you cancel, you will receive a full refund of the price paid for the Product in accordance with our refunds policy (see below). To cancel an Order Contract, you must contact us at firstname.lastname@example.org.
3.15 Product Returns. If you are located in the European Union and you cancel your Order Contract in accordance with this Section 3.15, you must return the Product to us within 14 days after the day of notifying us of the cancellation, in the same condition in which you receive them (which does not interfere with your right to take any reasonable steps to examine the Product and make sure they conform to your order). You have a legal obligation to take reasonable care of the Product while in your possession. If you fail to comply with this obligation, we may have a right to deduct the cost of any deterioration (due, for example, to your having used the Product), up to the price of the Product, from the refund to which you are otherwise entitled. To return any Product, you must notify Sisyphus Industries at email@example.com, package the Product securely in all of its original packaging (making sure you include a note of your name and address (enclosing any returns slip, if we have provided one) inside the parcel), and follow all other instructions provided by Sisyphus Industries.
3.16 Cost of Returns and Postal Insurance. We advise that you take out enough postal/carriage insurance to cover the value of the contents. Please save your proof of posting/shipping and tracking information until your refund has been processed. You will be responsible for the cost and risk of returning the Product to us.
3.17 Refund Policy—European Union. If you are located in the European Union and you cancel your Order between us within the 14-day cooling-off period (see above), we will process any refund due to you promptly after we receive the Product back. We will refund the price paid in full (subject to any deduction we are entitled to make due to your use of or damage to the Product). However, we will not refund your cost of returning the Product to us. If you received any promotional or other discount when you paid, any refund will only reflect the amount you actually paid. Refunds are made using the same method originally used by you to pay for your purchase, unless agreed otherwise.
3.18 Consumer Rights – European Union. If you are located in the European Union, details of your consumer rights are described in Sections 3.13 through 3.18. Nothing in this Section 3 affects your legal rights.
3.19 Product Information; Changes. While we have taken reasonable steps to depict the Product as accurately as possible through the photographs and other images featured on our websites, the detailing (such as color, pattern and texture, etc.) you see on-screen will depend on your monitor and, as such, may not exactly reflect the actual detailing of a Product when you receive it. In addition, Sisyphus Industries expressly reserves the right, at any time and without notice, to discontinue the production or change the specifications of any Product or the Service.
3.20 Support. You may request support for any problems with the Product by contacting us at support@Sisyphus-Industries.com. Sisyphus Industries is under no obligation to provide specific levels of support, or to meet specific response or resolution times.
4 SECTION 4 – Warranties and Disclaimers; Warranty Returns; LIMITATION OF LIABILITY
4.1 Limited Warranty for Products. If you are not located in the European Union, please review the limited Product warranty located at http://sisyphusind.wpengine.com/warrantyandreturns, carefully before making a purchase decision. If any law in your jurisdiction modifies this warranty, however, then Sisyphus Industries does not offer a warranty in your jurisdiction and nothing in this Section affects your legal rights.
4.2 Faulty Products. If you believe a Product was delivered damaged or faulty or has developed a fault, you should inform us as soon as possible in writing or contact us through our website at http://sisyphusind.wpengine.com/, giving your name, address and order reference. If you are located in the European Union, and if any Product is damaged or faulty when delivered to you or develops a fault, you may have one or more legal remedies available to you, depending on when you make us aware of the problem, in accordance with your legal rights in the country in which you reside.
4.3 Warranty Returns. Please see warranty return information at http://sisyphusind.wpengine.com/warrantyandreturns.
4.4 No Warranty for Modified Products. If you modify a Product, please be aware that your modification of your Product voids the limited warranty
4.5 All Sand Track Designs Licensed As-Is Without Warranty. All designs are provided as-is, without any warranty. UNLESS OTHERWISE REQUIRED BY LAW, IN NO EVENT SHALL SISYPHUS INDUSTRIES BE LIABLE OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE DESIGNS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF SISYPHUS INDUSTRIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.6 Limited Disclaimer. HOWEVER, SISYPHUS INDUSTRIES DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT SISYPHUS INDUSTRIES IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
4.7 LIMITATION OF LIABILITY.
The provisions of this Section 4.7 apply if you are not located in the European Union, but nothing in this Section 4.7 affects your legal rights. See Section 4.10 if you are located in the European Union.
4.8 Limit of Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL SISYPHUS INDUSTRIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, OR ANY PRODUCT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SISYPHUS INDUSTRIES HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
4.9 Subject to the foregoing sentence, if you are a consumer and not a business customer, in no event shall we be liable to you for any business losses, and if you are a business customer, in no event shall we be liable to you for any indirect or consequential losses, or for any loss of profit, revenue, contracts, data, goodwill or other similar losses, and any liability we do have for losses you suffer arising from any Order shall not exceed the purchase price of the relevant Product and is strictly limited to losses that were reasonably foreseeable. Losses are foreseeable where they could be contemplated by you and us at the time your order is accepted by us.
4.10 LIMITATION OF LIABILITY – EUROPEAN UNION. Nothing in these terms shall limit or exclude our liability to you for: (a) death or personal injury caused by our negligence; (b) fraudulent misrepresentation; (c) breach of any term implied by any consumer legislation applicable in the country in which you reside and which, by law, may not be limited or excluded; or (d) any other liability that, by law, may not be limited or excluded. Subject to the foregoing sentence, if you are a consumer and not a business customer, in no event shall we be liable to you for any business losses, and if you are a business customer, in no event shall we be liable to you for any indirect or consequential losses, or for any loss of profit, revenue, contracts, data, goodwill or other similar losses, and any liability we do have for losses you suffer arising from any Order shall not exceed the purchase price of the relevant Product and is strictly limited to losses that were reasonably foreseeable. Losses are foreseeable where they could be contemplated by you and us at the time your order is accepted by us.
5 SECTION 5 – GENERAL
5.1 Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
5.2 Ownership; Proprietary Rights. The Product, designs, and the visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), software, services, and all other elements are protected by intellectual property and other laws, and are the property of Sisyphus Industries LLC or our third-party licensors. Sisyphus Industries reserves all rights in and to the Product not granted expressly in these Terms or other Additional Terms. Sisyphus Industries may be independently creating content (including designs) that may be similar to or competitive with your, or another user’s, User Content. Nothing in this Agreement will be construed as restricting or preventing Sisyphus Industries from creating new content and exploiting any of Sisyphus Industries’ intellectual property rights, without any obligation to you.
5.3 Indemnity. You are responsible for your use of the Product and you will defend and indemnify Sisyphus Industries and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your access to, use of, or misuse of the Product, in a way that is harmful to others; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
5.4 Governing Law. If you are not located in the European Union, these Terms are governed by the laws of the State of Minnesota without regard to conflict of law principles. For any action not precluded by the arbitration provisions of Section 5.7, You and Sisyphus Industries agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Hennepin County, State of Minnesota, U.S.A. If you are located in the European Union, these Terms are governed by English law, except that (if you are a consumer and not a business user) and if you live in a country (which, for these purposes, includes Scotland or Northern Ireland) of the European Union other than England, there may be certain mandatory applicable laws of your country which apply for your benefit and protection in addition to or instead of certain provisions of English law. However, nothing in this Section 5.4 affects your legal rights.
5.6 Force Majeure. Sisyphus Industries will not be liable to you for any delay in delivery of the Product including any delay or lack of access due to an event beyond Sisyphus Industries’ reasonable control, such as an act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made condition outside of Sisyphus Industries’ control. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms or any Order Contract that is caused by events outside our reasonable control.
5.7 Dispute Resolution and Arbitration.
The provisions of this Section 5.7 apply if you are not located in the European Union, but nothing in this Section 5.7 affects your legal rights. See Section 5.8 if you are located in the European Union.
5.7.1 Binding Arbitration. In the interest of resolving disputes between you and Sisyphus Industries in the most expedient and cost-effective manner, and except as described in Section 5.4, you and Sisyphus Industries agree that every dispute arising in connection with these Terms (including any dispute arising from your purchase or use of a Product) will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SISYPHUS INDUSTRIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
5.7.2 Exceptions. Despite the provisions of Section 5.7.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
5.7.3 Arbitrator. Any arbitration between you and Sisyphus Industries will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”). The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Sisyphus Industries. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
5.7.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Sisyphus Industries’ address for Notice is: Sisyphus Industries, LLC, 451 Taft St. NE, suite 8, Minneapolis, MN 55413, USA. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Sisyphus Industries may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Sisyphus Industries must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
5.7.5 Fees. If you commence arbitration in accordance with these Terms, Sisyphus Industries will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Hennepin County, Minnesota, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Sisyphus Industries for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
5.7.6 No Class Actions. YOU AND SISYPHUS INDUSTRIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Sisyphus Industries agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
5.7.7 Modifications to this Arbitration Provision. If Sisyphus Industries makes any future change to this arbitration provision, other than a change to Sisyphus Industries’ address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Sisyphus Industries’ address for Notice of Arbitration, in which case your account with Sisyphus Industries will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
5.7.8 Enforceability. If Section 5.7.6 is found to be unenforceable or if the entirety of this Section 5.7 is found to be unenforceable, then the entirety of this Section 5.7 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 5.4 will govern any action arising out of or related to these Terms.
5.8 Dispute Resolution—European Union. If you are located in the European Union, you agree that any dispute between you and us regarding these Terms or any Order will only be dealt with by the English courts, except that (if you are a consumer and not a business user) and if you live in a country (which, for these purposes, includes Scotland or Northern Ireland) of the European Union other than England, you can choose to bring legal proceedings either in your country or in England, but if we bring legal proceedings, we may only do so in your country. The European Online Dispute Resolution platform http://ec.europa.eu/consumers/odr/ provides information about alternative dispute resolution which may be of interest and we are required to inform you that you may use it if there is a dispute that cannot be resolved between you and us.
5.10 Contact Information. The Product is offered by Sisyphus Industries, LLC located at 451 Taft St. NE, suite 8, Minneapolis, MN 55413. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
5.11 Notice Regarding Apple. This Section 5.11 only applies to the extent you are using a mobile application provided by Sisyphus Industries on an iOS device. You acknowledge that these Terms are between you and Sisyphus Industries only, not with Apple Inc. (“Apple”), and Apple is not responsible for the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the mobile application., Apple has no other warranty obligation with respect to the mobile application. Apple is not responsible for addressing any claims by you or any third party relating to the mobile application or your possession and/or use of the mobile application, including: (a) product liability claims; (b) any claim that the mobile application fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement or discharge of any third-party claim that the mobile application and/or your possession and use of the mobile application infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the mobile application. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
5.12 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the mobile application or to receive further information regarding use of the mobile application.