Last updated: May 2012
Key Content-related Terms
“Content” means text, graphics, images, music, software (excluding the Software and Application), audio, video, information or other materials.
“SphereUp Content” means Content that SphereUp makes available through the Site, Software, Services or Application, including any Content licensed from a third party, but excluding Member Content.
“Member” means a person that completes SphereUp’s account registration process, as described under the “Account Registration” section below.
“Member Content” means Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Site, Software, Services or Application, including, but not limited to, Contact Information (defined below).
“Collective Content” means, collectively, SphereUp Content and Member Content.
Certain areas of the Site (and your access to or use of certain Services, Software, Application or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Software, Services, Application or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Software, Services, Application or Collective Content, as applicable.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, SOFTWARE, SERVICES OR APPLICATION, OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE OR THROUGH THE SERVICES, SOFTWARE OR APPLICATION, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED ON OR THROUGH THE SITE OR VIA THE APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, SOFTWARE, SERVICES, APPLICATION OR COLLECTIVE CONTENT.
SphereUp reserves the right, at its sole discretion, to modify, discontinue or terminate the Site, Software, Services or Application or to modify these Terms, at any time and without prior notice. If we modify these Terms we will post the modification on the Site or via the Application or Software or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Site, Services, Software or Application after we have posted a modification on the Site or via the Application or Software or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Software Services and Application.
The Site, Services, Software and Application are intended solely for persons who are 18 or older. Any access to or use of the Site, Software, Services or Application by anyone under 18 is expressly prohibited. By accessing or using the Site, Software, Services or Application you represent and warrant that you are 18 or older.
Using the Services
Via the Services, you can create and import lists of third party contact information (“Contact Information”) and share those lists or individual Contact Information with other users of the Services or with your contacts outside the Services. The Services also enable you to collaboratively manage lists of contacts with other users of the Services and subscribe to contact lists created by other users of the Services. SphereUp also (i) makes publicly available Contact Information accessible via the Services; (ii) makes suggestions for your use of the Services based upon such publicly available information and the Contact Information you make available via the Services; and (iii) matches differing types of Contact Information with the applicable contact, enabling you to view all available information on a contact-by-contact basis. The Services also allow you to use and share Contact Information in accordance with the selections you make via your Account. Please note that SphereUp does not make Contact Information publicly available via the Services, except in instances where certain Contact Information was publicly available at the time SphereUp received such information.
YOU UNDERSTAND AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL CONTACT INFORMATION YOU MAKE AVAILABLE VIA THE SERVICES. ACCORDINGLY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE PERMISSION AND RIGHT TO MAKE AVAILABLE AND SHARE ANY CONTACT INFORMATION YOU MAKE AVAILABLE VIA THE SERVICES. ADDITIONALLY, IF YOU CHOOSE TO TAKE ANY ACTION BASED UPON A SUGGESTION MADE BY SPHEREUP VIA THE SERVICES, YOU UNDERSTAND AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR TAKING SUCH ACTION AND THAT YOU HAVE ALL NECESSARY RIGHTS AND PERMISSIONS TO DO SO.
Content from Third Party Services
As part of the functionality of the Site, Software, Services and Application, you may link your Account with online accounts you may have with third party service providers (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information to SphereUp through the Site, Services or Application; or (ii) allowing SphereUp to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to SphereUp and/or grant SphereUp access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating SphereUp to pay any fees or making SphereUp subject to any usage limitations imposed by such third party service providers.
By granting SphereUp access to any Third Party Accounts, you understand that SphereUp will access, make available and store (if applicable) any Content (including, but not limited to, Contact Information) that you have provided to and stored in your Third Party Account (“Third Party Account Content”) so that it is available on and through the Site, Software, Services and Application via your Account. Unless otherwise specified in these Terms, all Third Party Account Content, if any, will be considered to be Member Content for all purposes of these Terms. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts will be available on and through your Account on the Site, Services and Application. Please note that if a Third Party Account or associated service becomes unavailable or SphereUp’s access to such Third Party Account is terminated by the third party service provider, then the Third Party Account Content that was available from such Third Party Account may no longer be available on and through the Site, Software, Services and Application. However, we will use reasonable business efforts continue to make such Third Party Account Content available via the Site, Application, Software and Services. You have the ability to disable the connection between your Account and your Third Party Accounts, at any time, by accessing http://contacts.sphereup.com/sources. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WTH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. SphereUp makes no effort to review any Third Party Account Content for any purpose, including but not limited to, for accuracy, legality or non-infringement and SphereUp is not responsible for any Third Party Account Content.
In order to access certain features of the Site, Services, Software and Application, you must register to create an account (“Account”) and become a Member. You may register directly via the Site, Software or Application or by logging into your account with certain third party social media or social networking sites (“SNS”) (including, but not limited to, Facebook) via the Site, Software Application, as described herein. If you decide to register through an SNS, we will extract the personal information you have provided to the SNS (such as your “real” name, email address and other information you make available via the SNS) from the account you have with the applicable SNS and use that information to create your Account. The specific information that we extract may depend on the privacy settings you have with the SNS. You hereby consent to our access to and collection of such personal information about you. During the registration process, you will be required to provide certain information.
You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. SphereUp reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify SphereUp of any unauthorized use of your Account.
Accounts and Payment Terms
SphereUp reserves the right, in its sole discretion, to implement and charge fees for use of the Services. You agree to pay the applicable subscription fee and any taxes and other fees that may accrue in relation to your use of the Site, Services and Application, if any. If you select an annual payment frequency, then the entire subscription fee will be payable in advance. If you select a monthly payment frequency, then you will automatically be charged the subscription fee for the subsequent month, unless you cancel your Account at least thirty (30) days before that month begins. All fees are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
The Site, Services, Software, Application and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Site, Services, Software, Application and SphereUp Content, including all associated intellectual property rights, are the exclusive property of SphereUp and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Software, Services, Application or Collective Content.
Licenses Granted by SphereUp to SphereUp Content and Member Content
Subject to your compliance with the terms and conditions of these Terms, SphereUp grants you a limited, non-exclusive, non-transferable license: (i) to view, download and print any SphereUp Content solely for your personal and internal business purposes as made available via our Services (unless you have received explicit written permission from SphereUp stating otherwise); and (ii) a to access and view any Member Content to which you are permitted access solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Services, Software, Application or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by SphereUp or its licensors, except for the licenses and rights expressly granted in these Terms.
If you choose to download the Software, the following terms and conditions apply.
Software License. Subject to your compliance with the terms and conditions of these Terms, SphereUp grants you a limited, non-exclusive and non-transferable license to install and use the executable form of the Software, without modification, solely for your personal or internal business purposes (unless you have received explicit written permission from SphereUp stating otherwise). You may make a copy of the Software for backup purposes, provided that you reproduce on it all copyright and other proprietary notices that are on the original copy of the Software. SphereUp reserves all rights in the Software not expressly granted to you in these Terms.
Software License Restrictions. Except as expressly specified these Terms, you may not: (i) use, copy, modify or distribute the Software for any purpose; (ii) transfer, sublicense, lease, lend, rent or otherwise distribute the Software to any third party; or (iii) use the Software in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms. You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
Updates and Upgrades; No Obligation. SphereUp is not obligated to maintain or support the Software, or to provide you with updates, upgrades or services related thereto. You acknowledge that SphereUp may from time to time in its sole discretion issue updates or upgrades to the Software, and may automatically update or upgrade the version of the Software that you are using. You consent to such automatic updating or upgrading, and agree that the terms and conditions of these Terms will apply to all such updates or upgrades.
Term and Termination. The license to the Software granted under these Terms remains in effect for a period of 75 years, unless earlier terminated by you or SphereUp in accordance with this provision. You may terminate the license at any time by destroying all copies of the Software in your possession or control. Without limiting any other terms of these Terms, the license will automatically terminate without notice from SphereUp if you breach any terms of these Terms. Upon any termination of these Terms, you must cease all use of the Software and promptly delete and destroy all copies, full or partial, of the Software.
Proprietary Rights. The copy of the Software is licensed, not sold, to you. You agree that SphereUp and its licensors own all right, title and interest in and to the Software, including all intellectual property rights therein, and that SphereUp retains ownership of all copies of the Software. The Software is protected by United States copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Software as delivered to you.
Government Users. Any use, duplication, or disclosure of the Software by the U.S. government is subject to restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. Manufacturer is SphereUp LTD.
License granted by Member
By making available any Member Content on or through the Site, Software, Services or Application, you hereby grant to SphereUp a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, reformat, publicly display and transmit such Member Content only on, through or by means of the Site, Software, Services or Application (i) in accordance with the selections you make via the Site, Software, Services and Application and (ii) in order to provide the Site, Software, Services and Application. SphereUp does not claim any ownership rights in any Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Software, Services or Application. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Software, Services or Application or you have all permissions, rights, licenses, consents and releases that are necessary to grant to SphereUp and to the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or SphereUp’s use of the Member Content (or any portion thereof) on, through or by means of the Site, Software, Services or Application will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Subject to your compliance with these Terms, SphereUp grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal use. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (“App Store Sourced Application”), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. SphereUp reserves all rights in and to the Application not expressly granted to you under these Terms.
Accessing and Downloading the Application from iTunes
The following applies to any App Store Sourced Application:
You acknowledge and agree that (i) these Terms are concluded between you and SphereUp only, and not Apple, and (ii) SphereUp, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between SphereUp and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of SphereUp.
You and SphereUp acknowledge that, as between SphereUp and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and SphereUp acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between SphereUp and Apple, SphereUp, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
You and SphereUp acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Services, Software or Application (“Feedback”). You may submit Feedback by emailing us at firstname.lastname@example.org or email@example.com or via the “Feedback” button of the Services or other similarly designated button made available by SphereUp via the Services. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
You agree not to do any of the following:
Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
Use, display, mirror or frame the Site, Software or Application, or any individual element within the Site, Software, Services or Application, SphereUp’s name, any SphereUp trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without SphereUp’s express written consent;
Access, tamper with, or use non-public areas of the Site, Software or Application, SphereUp’s computer systems, or the technical delivery systems of SphereUp’s providers;
Attempt to probe, scan, or test the vulnerability of any SphereUp system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by SphereUp or any of SphereUp’s providers or any other third party (including another user) to protect the Site, Software, Services, Application or Collective Content;
Attempt to access or search the Site, Software, Services, Application or Collective Content or download Collective Content from the Site, Software, Services or Application through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by SphereUp or other generally available third party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a SphereUp trademark, logo URL or product name without SphereUp’s express written consent;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Software, Services, Application or Collective Content to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Software, Services, Application or Collective Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site, Software, Services or Application;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
SphereUp will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. SphereUp may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that SphereUp has no obligation to monitor your access to or use of the Site, Software, Services, Application or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Site, Services, Software and Application, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. SphereUp reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that SphereUp, at its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Site, Software, Services or Application.
SphereUp respects copyright law and expects its users to do the same. It is SphereUp’s policy to terminate in appropriate circumstances Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see SphereUp’s Copyright and IP Policy at http://www.sphereup.com/copyright.html, for further information.
The Site, Services, Software or Application may contain links to third-party websites or resources. You acknowledge and agree that SphereUp is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by SphereUp of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products, or services on or available from such websites or resources.
Termination and Account Cancellation
If you breach any of these Terms, SphereUp will have the right to suspend or disable your Account or terminate these Terms, at its sole discretion and without prior notice to you. SphereUp reserves the right to revoke your access to and use of the Site, Software, Services, Application and Collective Content at any time, with or without cause. In the event SphereUp terminates these Terms for your breach, you will remain liable for all amounts due hereunder. You may cancel your Account at any time by sending an email to firstname.lastname@example.org with a request to cancel your Account.
THE SITE, SERVICES, SOFTWARE, APPLICATION AND COLLECTIVE CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, SPHEREUP EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. SPHEREUP MAKES NO WARRANTY THAT THE SITE, SERVICES, SOFTWARE, APPLICATION OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. SPHEREUP MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR COLLECTIVE CONTENT PURCHASED OR OBTAINED THROUGH THE SITE, SERVICES, SOFTWARE OR APPLICATION OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE, SERVICES, SOFTWARE OR APPLICATION.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SPHEREUP OR THROUGH THE SITE, SERVICES, SOFTWARE, APPLICATION OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, SERVICES, SOFTWARE AND APPLICATION AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, SOFTWARE, SERVICES OR APPLICATION. YOU UNDERSTAND THAT SPHEREUP DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SITE, SERVICES, SOFTWARE OR APPLICATION, NOR DOES SPHEREUP MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, SOFTWARE, SERVICES OR APPLICATION. SPHEREUP MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, SOFTWARE, SERVICES OR APPLICATION OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, SERVICES OR APPLICATION. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, SERVICES AND APPLICATION AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, SOFTWARE, SERVICES OR APPLICATION, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
You agree to defend, indemnify, and hold SphereUp, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site, Services, Software, Application or Collective Content, or your violation of these Terms.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, SOFTWARE, SERVICES, APPLICATION AND COLLECTIVE CONTENT REMAINS WITH YOU. NEITHER SPHEREUP NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, SERVICES, SOFTWARE, APPLICATION OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES, APPLICATION, SOFTWARE OR COLLECTIVE CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, SERVICES OR APPLICATION OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, SOFTWARE, SERVICES OR APPLICATION WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SPHEREUP HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL SPHEREUP’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES, SOFTWARE, APPLICATION OR COLLECTIVE CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO SPHEREUP FOR USE OF THE SITE, SERVICES, APPLICATION, SOFTWARE OR COLLECTIVE CONTENT IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY, IF YOU HAVE MADE ANY PAYMENTS TO SPHEREUP, OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT MADE ANY PAYMENTS TO SPHEREUP, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SPHEREUP AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of SphereUp used herein are trademarks or registered trademarks of SphereUp. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Controlling Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the Software, Application nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App Store Sourced Application or Software you 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.
These Terms constitute the entire and exclusive understanding and agreement between SphereUp and you regarding the Site, Services, Software, Application and Collective Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between SphereUp and you regarding the Site, Software, Services, Application and Collective Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without SphereUp’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. SphereUp may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by SphereUp: (i) via email (in each case to the address that you provide); (ii) by posting to the Site; or (iii) via the Application or Software. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
You and SphereUp agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site, Services, Software or Application (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and SphereUp are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and SphereUp otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/si.asp?id=3477 and a separate form for California residents at www.adr.org/si.asp?id=3485.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and SphereUp otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and SphereUp submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. SphereUp will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, SphereUp will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the “Modification” section above, if SphereUp changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of SphereUp’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and SphereUp in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
The failure of SphereUp to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of SphereUp. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
If you have any questions about these Terms or any App Store Sourced Application, please contact SphereUp at firstname.lastname@example.org, at PO Box 10457, Petah Tikva 49004, Israel or at (650) 468-0150.