Terms of Service
Effective Date: January 29th, 2025
NOOSPHERE – TERMS OF USE
Welcome to Noosphere!
These Terms of Use (“Terms of Use” or “Terms”) are a binding contract between you and Noosphere Inc. (“Noosphere,” “we”, “us”, “our”). Our services consist of our mobile application and digital products and services, including without limitation, the Noosphere platform (collectively, the “Services”) that permit registered and authorized contributors (“Contributors”) to publish and distribute their content (which may include without limitation any of their writings and audio and/or visual content) (collectively, the “Content”) through our Services to engage you, and our other users and subscribers (“Viewers” or “you”).
BY DOWNLOADING AND/OR USING ANY SERVICES OR CONTENT PROVIDED TO YOU BY OR ON BEHALF OF NOOSPHERE IN CONNECTION WITH YOUR USE OF THE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE BOUND BY ALL OF THE TERMS, CONDITIONS, POLICIES (INCLUDING PRIVACY POLICY) AND NOTICES CONTAINED OR REFERENCED HEREIN, AND YOU AND WE FURTHER AGREE TO RESOLVE ANY DISPUTE BETWEEN US THROUGH A DISPUTE RESOLUTION PROCEDURE DESCRIBED IN SECTION 13.3 BELOW. PLEASE CAREFULLY REVIEW SECTION 13.3 TITLED “ARBITRATION; DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING THIS DISPUTE RESOLUTION PROCEDURE (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION). YOU SHOULD REVIEW THE TERMS OF USE FROM TIME TO TIME. NOOSPHERE MAY CHANGE ANY OF THE TERMS OF USE AT ANY TIME BY POSTING REVISIONS TO THE SERVICES, AND CHANGES ARE EFFECTIVE FROM THE DATE POSTED. YOUR CONTINUED USE OF THE SERVICES CONSTITUTES YOUR ACCEPTANCE OF THE REVISED TERMS OF USE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF USE, YOU MUST EXIT THE SERVICES IMMEDIATELY, AND YOU MUST NOT USE THE SERVICES.
If you’re agreeing to these Terms of Use on behalf of an organization or entity, you must be authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” throughout this document refer to that organization or entity).
These Terms include everything in this document, as well as those in the Privacy Policy, Content Guidelines, Copyright Dispute Policy, and all other rules and procedures that may be published from time to time by us on the Services. In the event of any conflict between these Terms of Use and any other terms and conditions you have agreed to with Noosphere, these Terms of Use will prevail with respect to its subject matter. If you are a Contributor, then the Contributor Terms of Use also apply, and the Contributor Terms will prevail in a conflict with these Terms of Use.
1. ELIGIBILITY; NO USE BY CHILDREN. Viewers access and use of the Services is restricted to individuals who reside in the United States (including its territories and possessions where applicable) (the “Territory”). If Noosphere has previously prohibited you from accessing or using the Services, you are not permitted to access or use the Services. Viewer participation in the Services is not directed to, or intended for use by anyone under the age of seventeen (17). Children should not use the Services or submit any information to Noosphere or the Services.
2. REGISTRATION AND ACCOUNTS; DEVICES AND CHARGES.
2.1 If we request registration information from you to set up a Viewer account, you must provide us with accurate and complete information and must update the information when it changes. You may not select as your Noosphere account name a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. Noosphere reserves the right to refuse registration of or cancel a Noosphere account name at its discretion. You are responsible for maintaining the confidentiality of your user account login names and passwords, and must not permit use of your account by anyone other than your authorized representatives. You accept responsibility for all activities, charges, and damages that occur under your account, including use of your account by your representatives,
and unauthorized use of your account. If you have reason to believe that someone is using your account without your permission, you should contact us immediately. We are not responsible for any loss or damage resulting from unauthorized use.
2.2 You agree that you will only use Noosphere for your own personal or organizational use, and not on behalf of or for the benefit of any third party. You may not transfer your account to anyone else without our prior written permission. As a Viewer, you can use your account on the Services to follow Contributors and their Content. As a Contributor, your use of the Services is further subject to the Contributor Terms.
2.3 You are solely responsible for obtaining all devices, internet, network connectivity, and other products or services needed for your access to and use of the Services, and you will be solely responsible for all charges related to them. We are not responsible for the performance of devices, products, or services you use to access our Services, including the ongoing compatibility of such devices with our Services, and you agree to solely bring any issues therewith to the entity that provided you the device or service.
3. NOOSPHERE SUBSCRIPTION TERMS. The following terms apply to subscribers of Noosphere:
3.1. Subscription Fees and Auto-Renewal. ACCESS TO THE SERVICE REQUIRES YOU TO SIGN UP FOR A SUBSCRIPTION, WHICH INVOLVES AUTOMATIC ENROLLMENT INTO A RECURRING PAYMENT PLAN. IF YOU SIGN UP FOR A SUBSCRIPTION TO THE SERVICE, YOU AGREE THAT YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR SUBSEQUENT BILLING PERIODS OF EQUAL LENGTH TO YOUR CURRENT BILLING PERIOD (FOR EXAMPLE, MONTHLY) AT THE END OF THE BILLING PERIOD AT THE THEN-CURRENT SUBSCRIPTION FEE (PLUS APPLICABLE TAXES AND FEES) UNLESS YOU CANCEL IN ACCORDANCE WITH THE INSTRUCTIONS BELOW. PAYMENT WILL BE CHARGED TO YOUR CHOSEN PAYMENT METHOD UPON PURCHASE CONFIRMATION AND AT THE START OF EVERY NEW BILLING PERIOD UNLESS YOU CANCEL.
The monthly subscription billing period is thirty (30) days, or one year, from the date the payment method you provide (“Payment Method”) is charged. The amount charged to your Payment Method may vary from billing period to billing period due to changes in your subscription plan or applicable taxes or transaction fees. The payment process may vary based on the platform through which you signed-up (e.g. Apple) and may be subject to additional platform terms. We reserve the right to change the subscription fee for Noosphere at any time following notice to you (either through Noosphere or by sending an email to the address you register for your account). If you do not wish to accept a change to the subscription fee, you may cancel your subscription as described below. If there are any discrepancies in billing, you hereby waive your right to dispute such discrepancies if you do not notify us within sixty (60) days after they first appear on an account statement. In order to so notify us, please email us at [email protected].
Your subscription to Noosphere automatically renews until cancelled. Your Payment Method will automatically be charged at the start of your subscription and on an on-going basis the day immediately following the end of prior subscription billing period unless you cancel your subscription, or Noosphere is suspended or terminated.
3.2 Cancellation and Refund Policy. ALL FEES ARE NON-REFUNDABLE. As described further below, even if you cancel your subscription to Noosphere before the end of your active subscription period, as applicable, you will not receive a refund for any portion of the fees for the remainder of that subscription period.
You can cancel your subscription to Noosphere at any time through your account settings or by emailing us at [email protected]. If you cancel your subscription, the cancellation will go into effect at the end of your current subscription period. You will have continued access to Noosphere for the remainder of your paid subscription period, but YOU WILL NOT RECEIVE A REFUND OF ANY FEES PAID. You must cancel your subscription before it renews to avoid paying the subscription fees for the next subscription period. You acknowledge and agree that, to the extent not prohibited by applicable law, cancellation of your subscription is your sole recourse if you have any dissatisfaction, issue, or concern related to the Noosphere, its content or features, including fees, applicable taxes, or billing methods; the selection of content available to you through Noosphere; the Terms, or any changes thereto; or any other policies or practices that apply Noosphere.
4. INTELLECTUAL PROPERTY.
4.1 We respect others’ intellectual property rights, and we reserve the right to delete or disable content alleged to be infringing, and to terminate the accounts of repeat alleged infringers. You promise to abide by copyright notices, trademark rules, information, and other restrictions you may receive from us or that are posted on the Services. Unless otherwise indicated, all logos, names, package designs and marks on the Services are trademarks or service marks and may not be used without permission. Noosphere’s policy is to terminate the online privileges of individuals who violate the copyrights of others.
4.2 To review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here. To learn more about the Digital Millennium Copyright Act, which governs how we handle these reports, click here.
4.3 You understand that we own Noosphere, the Services, the Posts (as defined below), and you understand that the Contributor’s own their own Content. These Terms of Use don’t grant you any right, title or interest in Noosphere, or our trademarks, logos, and other intellectual property, or the Content, or Contributor’s trademarks, logos, and other intellectual property. As such, title and intellectual property rights in and to any Content or other content and information displayed by or accessed through the Services belongs to the respective content owner. Such materials are protected by copyright or other intellectual property laws and treaties. Apart from your right to view the third-party materials, these Terms of Use do not grant you the right to copy, distribute, prepare derivative works, publicly display, or make other use of such materials. You agree that you shall not: download, record, copy or store any portion of the Content from the Services; or distribute, share, or otherwise use the Content on external properties without Noosphere’s prior written consent (which may be withheld at its discretion). Notwithstanding the foregoing, Viewers may share links to the Services or Content on the Services, on its own social media pages, provided such sharing clearly identifies Noosphere at the source and location to view such Content.
4.4 Noosphere grants you a non-exclusive, limited, personal and nontransferable license, subject to and conditioned on your compliance with the restrictions set forth in these Terms of Use, to use the Services. The license grant above includes the right to use documentation accompanying the Service’s software for the sole purpose of using the Services. You may only use the Services and the Content as expressly permitted herein and for no other purpose. The Services are only for your own personal, non-commercial use and not for use in the operation of a business or service bureau, for profit or for the benefit or any other person or entity.
5. ACCEPTABLE USE POLICY.
5.1 You are responsible for all your activity in connection with the Services. We reserve the right to remove any content from Noosphere at any time, for any reason (including, but not limited to, in connection with allegations of breach of these Terms of Use), in our sole discretion, and without notice. Make sure that you use the Services in a manner that complies with the law. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for you using the Services in a way that breaks the law.
5.2 As a condition of the limited license for the Services granted to you in these Terms of Use, except as authorized by Noosphere in writing on a case by case basis, and except as and only to the extent expressly permitted in these Terms of Use or by applicable law which cannot be waived by these Terms of Use, you will NOT:
- download to save, any Content shown, displayed or listed on the Services, or otherwise from Noosphere;
- sell, license, rent, publish, publicly display, publicly perform, publish, broadcast, disclose, rent, lease, modify, loan, distribute or create derivative works based on the Content, Services, or any part thereof, or offer for sale any Content or other information contained on or obtained from or through the Services, by any means;
- copy, reproduce, decompile, reverse engineer, disassemble, translate, adapt, edit or otherwise reduce the Content or Services to human readable form;
- attempt to create the source code from the object code of the Services;
- interfere with any other party’s use and enjoyment of the Services;
- advertise any commercial endeavor or otherwise engage in any commercial activity;
- upload unsolicited bulk communications of any kind;
- systematically retrieve any of the Content to create or compile, directly or indirectly, a collection, compilation, database or directory
- Scrape, access, monitor, index, frame, link, or copy any content or information on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or any other method of access other than manually accessing the publicly-available portions of the Services through the Site or app;
- make any third-party software contained in the Services a standalone product;
- take any action that will infringe on the intellectual property or other proprietary rights of Noosphere, Contributors, or any third party software provider;
- run any version of the app on a jailbroken device;
- use the Services commercially, for benchmarking, or to compile information for a product or service;
- sublicense or assign the Content or Services;
- view any Content provided by Noosphere or its suppliers anywhere other than within the Territory;
- attempt to do any of the foregoing directly or indirectly.
6 OTHER USERS AND THIRD PARTIES.
6.1 Comments, information, materials, or other items posted to the Services (“Posts”), and Contributor Content – are the sole responsibility of the person or organization from whom such Posts originated. You access all such Posts at your own risk. We aren’t liable for any errors or omissions in any Posts or other information submitted by users to the Services and you hereby release us from any damages or loss you might suffer in connection therewith.
6.2 Your interactions with organizations and individuals found on or through Noosphere, are solely between you and such organizations and individuals. You agree that Noosphere shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such interactions. We can’t guarantee the identity of any Viewers or other non-Contributor users with access to the Services and are not responsible for which Viewers gain access to our products and services.
6.3 Noosphere may contain links or connections to third party content, websites or services that are not owned or controlled by us. Noosphere has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party content, websites, or services. You release and hold us harmless from any and all liability arising from your use of any third-party content, website or service.
6.4 In the event that you have a dispute with one or more other users of Noosphere or with a third party, you release us, our officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or Noosphere.
7 DATA; PRIVACY; COMMUNICATIONS.
7.1 Data; Privacy. The Services may provide Noosphere with limited access to your device. Among other things, the Services may provide Noosphere with information related to your use of the Services, including Content viewed, amount of time viewed, information regarding your computer system, such as a unique device identifier, your operating system, existing software, amount of available storage space and internet connectivity, and your interaction with the Services. This information will, among other things, enable Noosphere to manage rights associated with the content, allow Noosphere to help you use the Services more effectively, enforce these Terms of Use and otherwise help Noosphere to enhance and improve the Services. Information obtained by Noosphere will be treated in accordance with our Privacy Policy found www.noosphere.app (“Privacy Policy”). For information about how we collect, use, and share the data we collect from and about you, please see our Privacy Policy which is incorporated by reference into these Terms of Use.
7.2 Communication. By joining the Services, you authorize Noosphere to send you in-app messages in the Noosphere app. Such consent is not required by you in order for you to have the ability to purchase goods or services from Noosphere. You can opt-out anytime by updating the permissions granted in the settings section of the app.
7.3 Disclosure. You acknowledge, consent, and agree that Noosphere may access, preserve, and disclose your information and/or any user content you submit or make available for inclusion on the Services, if required to do so by law or in a good faith belief that such access, preservation, or disclosure is permitted by our Privacy Policy or reasonably necessary or appropriate for any of the following reasons: (1) to comply with legal process; (2) to enforce these Terms of Use, our Privacy Policy, or other contracts with you, including investigation of potential violations thereof; (3) to respond to claims that any content violates the rights of third parties; (4) to respond to your requests for customer service; and/or (5) to protect the rights, property, or personal safety of Noosphere, its agents and affiliates, its users, and the public. This includes exchanging information with other companies and organizations for fraud protection, and spam/ malware prevention, and similar purposes.
8 LIMITATION OF LIABILITY; INDEMNIFICATION.
8.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, UNDER NO CIRCUMSTANCES OR LEGAL THEORIES SHALL NOOSPHERE, ITS LICENSORS, SUPPLIERS, OR THE CONTRIBUTORS (COLLECTIVELY, THE “RELEASED PARTIES”, BE LIABLE TO YOU OR ANY OTHER PERSON FOR:
- ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR
- ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (1) $100 OR (2) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO US IN CONNECTION WITH NOOSPHERE IN THE TWELVE-MONTH PERIOD PRECEDING THE APPLICABLE CLAIM.
8.2 You agree to defend, indemnify, reimburse and hold harmless the Released Parties from all liabilities, claims and expenses, including, but not limited to, costs and attorneys’ fees, that arise in any way from your use of the Services or the Content or any use of your account via the Services, your violation of these Terms of Use or Noosphere’s Privacy Policy, your violation of an applicable law, your submission, posting, or transmission of Posts to the Services, and/or your violation of any rights of another. Noosphere reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Noosphere in asserting any available defenses.
9 NO WARRANTIES.
9.1 THE SERVICES ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. THIS MEANS WE PROVIDE IT TO YOU WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND. THAT INCLUDES ANY IMPLIED WARRANTIES OF MERCHANTABILITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTY THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
9.2 Accordingly, Noosphere does not:
- Make any representations or warranties about any Content, Posts, or other materials contained in or accessed through Noosphere, and we will not be responsible for the accuracy, copyright compliance, legality, or decency of material contained on our products and services.
- Make any representations or warranties regarding suggestions or recommendations of products or services (including Contributors’ Content) offered through the Services. Products and services purchased or offered through Noosphere, including access to Content, are provided “AS-IS” and without any warranty of any kind from Noosphere.
10 TERMINATING YOUR ACCOUNT.
10.1 Noosphere is free to terminate (or suspend access to) your use of the Services, or your account, for any reason at our discretion. Noosphere also allows you to delete your account at any time. If you'd like to delete your account, please go to ‘Settings – Account – Delete’. You understand and agree that it may not be possible to completely delete your content from Noosphere’s records or backups, and that your content may remain viewable elsewhere to the extent that they were copied or stored by other users. Please refer to our Privacy Policy to understand how we treat information you provide to us after you have stopped using Noosphere.
10.2 You agree that some of the obligations in these Terms of Use will be in force even after your account is terminated. All of the following terms will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, terms regarding disputes between us, and any other terms that, by their nature, should survive termination of these Terms.
10.3 UPON OUR TERMINATION OF YOUR ACCOUNT OR ACCESS TO SERVICES, ALL RIGHTS GRANTED BY US TO YOU IN THESE TERMS OF USE WILL AUTOMATICALLY TERMINATE AND IMMEDIATELY REVERT TO US, BUT THESE TERMS OF USE WILL REMAIN IN FULL FORCE AND EFFECT WITH RESPECT TO YOUR PAST USE OF THE SERVICES, INCLUDING ALL RIGHTS GRANTED BY YOU TO US.
11 CHANGES TO THE SERVICES; TERMS. Noosphere may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always possible or practical. These Terms may need to change along with the Services. We reserve the right to change the Terms of Use at any time, but if we do, we will bring it to your attention by posting revisions. If you don’t agree with the new Terms of Use, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes. Except for changes by us as described here, no other amendment or modification of these Terms of Use will be effective unless in writing and signed by both you and us.
12 VIOLATIONS. Failure to follow any of these Terms of Use shall constitute a breach of these Terms of Use, which may result in immediate termination of your account. Noosphere has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms of Use.
13 MISCELLANEOUS TERMS.
13.1 Assignment. You may not assign, delegate or transfer these Terms of Use or your rights or obligations hereunder, or your Noosphere account, in any way (by operation of law or otherwise) without our prior written consent. We may transfer, assign, or delegate these Terms of Use and our rights and obligations without consent.
13.2 Choice of Law. These Terms of Use are governed by and will be construed under applicable federal law and the laws of the State of Delaware, without regard to the conflicts of laws provisions thereof.
13.3 Arbitration; Dispute Resolution.
i. PLEASE READ THIS SECTION CAREFULLY. IT INCLUDES AN AGREEMENT TO MANDATORY ARBITRATION, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE
RELATED TO THIS AGREEMENT AND YOUR USE OF THE SERVICE TO BINDING ARBITRATION RATHER THAN PROCEED IN COURT. THIS SECTION ALSO INCLUDES A WAIVER OF JURY TRIAL. BY ACCEPTING THIS SECTION YOU AGREE THAT THIS SECTION IS REASONABLY NECESSARY TO PROTECT THE LEGITIMATE BUSINESS INTERESTS OF NOOSPHERE.
ii. Mandatory Informal Dispute Resolution Process. You and Noosphere agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective, and mutually beneficial outcome. Therefore, if either you or Noosphere wants to bring or resolve a Dispute (as defined below), you or Noosphere must follow the mandatory informal dispute resolution process as a precondition to the ability to file an arbitration demand or lawsuit. You understand and agree to the mechanisms for resolving any Dispute between us (the term “Dispute” being given the broadest possible meaning that will be enforced, and shall include any dispute, claim, demand, count, cause of action, or controversy between you and Noosphere, whether based in contract, statute, regulation, ordinance, tort, or any other legal or equitable theory. The term “Dispute” specifically includes, but is not limited to, any disputes, actions, claims, or controversies between you and Noosphere that arise from or in any way relate to or concern any Content, products or services provided by Noosphere, including but not limited to the Services, any other aspect of these Terms of Use (including their applicability and their conformance to applicable law), and any disputes relating to any other communications either of us received from the other.
a. Notice. You or Noosphere must first send to the other a written Notice of Dispute (“Notice”) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, and the relief requested, including damages, if any, and a detailed calculation for them. Your Notice also must contain your email address and (if different) the email address associated with your Noosphere account. Our Notice must be sent to your email address or other contact information associated with your Noosphere account, and you consent to receive any such Notice as part of these dispute resolution terms. You and we must include in any Notice to each other a personally signed statement (from you or us—not from your or our counsel) verifying the accuracy of the contents of the Notice, and if you are represented by counsel, your signed statement authorizing Noosphere to disclose your Noosphere account details to your attorney while seeking to resolve your claim. We each must individualize our Notice, meaning it can concern only our Dispute and no other person’s Dispute. You must send your Notice to Noosphere at [email protected]. FOR THE NOTICE TO BE EFFECTIVE, IT MUST INCLUDE YOUR NAME AND THE NAME, ADDRESS, TELEPHONE NUMBER, AND E-MAIL ADDRESS OF YOU AS AN INDIVIDUAL AND (IF APPLICABLE) YOUR ORGANIZATION CLAIMING A DISPUTE, AS WELL AS A CLEAR STATEMENT THAT YOU AND (IF APPLICABLE) YOUR ORGANIZATION ARE INITIATING THE DISPUTE RESOLUTION PROCESS PURSUANT TO THE TERMS OF USE. In the case of a Dispute initiated by you or us, it is the sender’s responsibility to prove that the sender provided the notice in the manner that is required in this paragraph.
b. Good Faith Effort to Informally Resolve Dispute. After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the Dispute for a period of 60 days (which can be extended by agreement). You and Noosphere agree that, after receipt of the completed Notice, the recipient may request an individualized telephone or video settlement conference and both parties will personally attend (with counsel, if represented). You and Noosphere agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually convenient time and to seek to reach a resolution. If you and Noosphere do not reach an agreement to resolve the issues identified in the Notice within 60 days after the completed Notice is received (or a longer time if agreed to by the parties), you or Noosphere may commence a proceeding as noted below.
iii. Arbitration Agreement. Except where prohibited by applicable law, any Dispute arising out of or relating to this Agreement shall be determined by binding arbitration in the State of Delaware before a single arbitrator. The arbitration proceedings and communications shall be conducted and provided in the English language and be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (provided, however, that if both parties affirmatively elect and agree in writing, JAMS’ Streamlined Arbitration Rules & Procedures (https://www.jamsadr.com/rules-streamlined-arbitration/) can be used instead). Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude either party from seeking provisional remedies (including but not limited to preliminary, interim, or injunctive relief) relating to the subject matter of the arbitration from a court of appropriate jurisdiction. 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 as may be necessary in connection with a court application for a preliminary or interim remedy, a judicial
challenge to an award or its enforcement or unless otherwise required by law or judicial decision. Each party shall bear its own costs and attorney’s fees, and the prevailing party will be entitled to reasonable attorneys’ fees, costs and necessary expenditures incurred in connection with such arbitration, as determined by the arbitrator, provided it is in an amount in proportion to the prevailing award and not to exceed the proportionate amount prevailed. Without limiting the generality of the foregoing, all costs of the arbitration (including but not limited to the fees and expenses of JAMS) shall be split evenly between the parties. The findings, reasoning and decision of the arbitrator shall be in writing. NOTWITHSTANDING THE ABILITY TO OPT OUT OF THE ARBITRATION REQUIREMENTS PURSUANT TO THIS SECTION, THE PARTIES AGREE THAT, UNLESS PROHIBITED BY APPLICABLE LAW, WHETHER ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT IS IN ARBITRATION OR IN COURT, EACH PARTY WAIVES AND RELINQUISHES ALL RIGHTS TO A JURY TRIAL.
iv. YOU MAY OPT OUT OF THIS ARBITRATION PROVISION BY SENDING WRITTEN NOTICE TO [email protected] WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST “ACCEPT” THE TERMS. FOR THE OPT-OUT TO BE EFFECTIVE, IT MUST INCLUDE YOUR NAME AND THE NAME, ADDRESS, TELEPHONE NUMBER, AND E-MAIL ADDRESS OF YOU AS AN INDIVIDUAL AND (IF APPLICABLE) YOUR ORGANIZATION OPTING OUT OF THIS ARBITRATION PROVISION, AS WELL AS A CLEAR STATEMENT THAT YOU AND (IF APPLICABLE) YOUR ORGANIZATION ARE OPTING-OUT OF THE ARBITRATION REQUIREMENT OF THESE TERMS AND CONDITIONS AND THAT YOU DO NOT WISH TO RESOLVE ANY CLAIMS OR DISPUTES WITH NOOSPHERE RELATED TO THE SERVICE THROUGH ARBITRATION. ANY OPT-OUT RECEIVED AFTER THE INITIAL THIRTY (30) DAY TIME PERIOD WILL NOT BE VALID.
v. YOU AND NOOSPHERE ALSO AGREE TO GIVE UP THE ABILITY TO SEEK TO REPRESENT, IN A CLASS ACTION OR OTHERWISE, ANYONE BUT EACH OF YOU AND NOOSPHERE, INCLUDING IN ARBITRATION AND IN STATE OR FEDERAL COURT. THEREFORE: YOU AND NOOSPHERE 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, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING, AND THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CLASS-WIDE RELIEF. You understand there is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator must follow the dispute resolution process described in THIS Section.
vi. Related Cases and Mass Filings. If your Notice involves claims similar to those of at least 25 other customers, and if you and those other customers are represented by the same lawyers, or by lawyers who are coordinating with each other, or if Noosphere asserts 25 or more similar demands for arbitration or counterclaims against similarly-situated parties, within a period of 60 days or otherwise close in proximity, you and we agree that these claims will be related (“Related Cases”), and this shall be called a “Mass Filing.” The following procedures will apply to a Mass Filing:
a. Acknowledgment of Related Cases procedure. If you or Noosphere, or your or our counsel, files a demand for arbitration that has Related Cases, then you and we agree that the demand for arbitration shall be subject to the additional protocols set forth in this Section 13.3.vi. If the parties disagree as to whether a series of filings fits within the definition of Mass Filing above, the arbitration provider shall resolve the disagreement. You and we also acknowledge that the adjudication of the dispute may be delayed and that any applicable statute of limitations shall be tolled from the time of filing of the demand for arbitration, and pending resolution of the proceedings described in this Section 13.3.vi.
b. Bellwether Arbitrations. Bellwether proceedings are encouraged by courts and arbitration administrators where there are multiple disputes involving similar claims against the same or related parties. The parties shall select ten individual arbitration claims (five per side), designated the “Initial Test Cases,” to proceed to arbitration. Only the Initial Test Cases shall be filed with the arbitrator. All other claims shall be held in abeyance. This means that the filing fees will be paid only for the Initial Test Cases; for all other demands for arbitration, the filing fees (together with any arbitrator consideration of the other demands) will be in abeyance, and neither You nor Noosphere will be required to pay any such filing fees. You and Noosphere also agree that neither you nor we shall be deemed to be in breach of this Section 13.3 for failure to pay any such filing fees, and that neither you nor we shall be entitled to any
contractual, statutory, or other remedies, damages, or sanctions of any kind for failure to pay any such filing fees. If, pursuant to this subsection, a party files non-Bellwether Arbitrations with the arbitration provider, the parties agree that the arbitration provider shall hold those demands in abeyance and not refer them to the arbitrator pending resolution of the Initial Test Cases. Unless the claims are resolved in advance or the schedule is extended, the arbitrators will render a final award for the Initial Test Cases within 120 days of the initial pre-hearing conference.
c. Global Mediation. Following the resolution of the Initial Test Cases, the parties agree to engage in a global mediation of all the remaining individual arbitration claims (“Global Mediation”), deferring any filing costs associated with the non-Initial Test Cases until the Initial Test Cases and subsequent Global Mediation have concluded. After the final awards are provided to the mediator in the Initial Test Cases, the mediator and the parties shall have 90 days to agree upon a substantive methodology and make an offer to resolve the outstanding cases. If the Parties are unable to resolve the outstanding claims during the Global Mediation, the unresolved Disputes may then be administered by the arbitration provider pursuant to this Agreement’s Batch Arbitration provision below and the arbitrator’s fee schedule for mass filings, unless the parties mutually agree otherwise in writing. You and we also acknowledge that any applicable statute of limitations shall be tolled pending resolution of the Bellwether Arbitration and Global Mediation process.
d. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Noosphere agree that in the event the Bellwether Arbitration and Global Mediation processes described above do not resolve the Disputes, the arbitration provider will (1) administer the remaining arbitration demands in batches of 50 demands per batch; (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). The final award will provide for individual merit decisions for each separate claimant within the single batch arbitration award. If the arbitration provider will not administer the Batch Arbitration with one set of filing and administrative fees due per side per batch, then the arbitration provider’s mass arbitration fee schedule shall apply. JAMS’ mass arbitration fee schedule shall apply, as necessary.
e. Opting Out. If your claim is not resolved as part of the Bellwether Arbitration and Global Mediation process outlined above, the parties shall also have the opportunity to opt out of arbitration and bring the pending Dispute to the state or federal courts located in Delaware, unless mandated by law to be filed in another state or federal court. The parties have 30 days from the date of the failed Global Mediation process to opt out. This shall not provide an opportunity for either party to opt out of arbitration for other claims. You may opt out of arbitration by providing written notice of your intention to opt out to the arbitration provider and to Arbitration Opt Out Notice to Noosphere as set forth above in Section 3.3.iv with a copy to the attorney representing Noosphere in the arbitration proceeding. This written notice must be signed by you, even if it is also signed by your attorney. The written notice cannot be signed by an agent or other representative of yours in lieu of your signature. It must include a statement that you wish to opt out of arbitration within 30 days after the conclusion of the Global Mediation process. Noosphere may exercise its equivalent opt-out right by sending written notice to you or your attorney, agent, or representative if you are represented.
f. Enforcement of Subsection. A Court of competent jurisdiction shall have the power to enforce Section 13.3.vi, including by injunctive, declaratory, or other relief.
vii. If for any reason (including due to your opting out of arbitration, as described above), a Dispute arising out of or relating to this Agreement is not able to be submitted to arbitration under this Section, then the parties agree that the state or federal courts located in the State of Delaware have exclusive jurisdiction over any such Dispute.
13.4 No Third-Party Beneficiaries. We agree there are no third-party beneficiaries intended under these Terms, except as set forth in Section 15 below.
13.5 No Joint Venture. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Noosphere Inc., and you do not have any authority of any kind to bind us in any respect whatsoever.
13.6 Waiver. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder.
13.7 Severability. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable.
13.8 Entire Agreement. You agree that these Terms are the complete and exclusive statement of the mutual understanding between you and us, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms.
14 CONTACT INFORMATION. Questions concerning the Terms of use or the Services should be directed to [email protected] or in writing to: Noosphere, 85 Broad St, 16th Floor, New York, NY10004.
15 MARKETPLACE TERMS.
15.1 Noosphere and you acknowledge that these Terms are concluded between Noosphere and you only, and not with Apple Inc., or other such third party marketplaces, platforms, and technology providers (collectively, the “Marketplace Provider”), and that as between Noosphere and the Marketplace Provider, Noosphere, not the Marketplace Provider, is solely responsible for the Services.
15.2 You may not use the Services in any manner that is in violation of or inconsistent with the usage rules set forth for the Services in, or otherwise be in conflict with, the applicable market place terms of service (the “App Store Terms of Service”).
15.3 Your license to use the Services is limited to a non-transferable license to use the Services on an iOS product, as applicable, that you own or control, as permitted by the usage rules set forth in the App Store Terms of Service. The Marketplace Provider has no obligation whatsoever to provide any maintenance or support services with respect to the Services. If you have any questions, complaints or claims with respect to the Services, they should be directed to the Noosphere at [email protected].
15.4 The Marketplace Provider is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Services on an iOS product to conform to any applicable warranty, you may notify Apple Inc., and Apple Inc. will refund the purchase price for such Services to you, if any; and, to the maximum extent permitted by applicable law, Apple Inc. will have no other warranty obligation whatsoever with respect to such Services, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Noosphere’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
15.5 Noosphere and you acknowledge that Noosphere, not the Marketplace Provider, is responsible for addressing any claims of you or any third party relating to the Services or your possession and/or use of the Services, including, but not limited to: (a) product liability claims; (b) any claim that the Services fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
15.6 In the event of any third party claim that the Services or the end-user’s possession and use of the Services infringes that third party’s intellectual property rights, as between Noosphere and the Marketplace Provider, Noosphere, not the Marketplace Provider, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
15.7 Noosphere and you acknowledge and agree that Apple Inc., and Apple Inc.’s subsidiaries, are third party beneficiaries of these Terms with respect to the Services, and that, upon your acceptance of the terms and conditions of these Terms, Apple Inc. will have the right (and will be deemed to have accepted the right) to enforce these Terms against you with respect to the Services as a third party beneficiary thereof.