Effective Date: June 1st, 2020
SECTION 14 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN YOU AND US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 14 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
IF YOU SUBSCRIBE TO THE SERVICES (DEFINED BELOW) FOR A TERM (THE “INITIAL TERM”), THEN THE AGREEMENT WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT NOTNEBIA’ THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 7.4 BELOW.
By accessing or using notnebia.com, or any other website with an authorized link to this Agreement (“Website”), installing or using our mobile application(s) (“App”), registering an account or accessing or using any content, information, services, features or resources available or enabled via the Website or App (collectively, the “Services”), or Notnebiacking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.
Your use of the Services is also subject to any additional terms, conditions and policies that we separately post on the Services (“Supplemental Terms”), which are incorporated by reference into this Agreement. To the extent there is any conflict between this Agreement and the Supplemental Terms, the Supplemental Terms will control with respect to the subject matter thereof.
Subject to Section 14.9 of this Agreement, Notnebia reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement or any applicable Supplemental Terms on the applicable Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
1. USE OF THE SERVICES . The Services are protected by copyright and other intellectual property laws throughout the world. Subject to the terms of this Agreement, Notnebia grants you a limited license to use the Services solely for your personal non-commercial purposes; provided, however, that if you are a dance studio or educational institution that Notnebia permits to use the Services (e.g., to offer such Services to students), you may use the Services solely for such commercial purposes; provided further, however, that you remain responsible for your, and each such student’s, compliance (or failure to comply with) the terms of this Agreement. Any future release, update or other addition to the Services shall be subject to the terms of this Agreement. Notnebia and its licensors suppliers and service providers reserve all rights not granted in this Agreement.
1.1. App License . Subject to your compliance with the terms of Agreement, Notnebia grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal or internal business purposes. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
1.2. Updates . Notnebia may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services (“Updates”). These Updates may be automatically installed without providing any additional notice or receiving any additional consent. Under this Agreement, you consent to these automatic updates. If you do not wish to use such Updates, your sole remedy is to terminate your Account (defined below). If you do not terminate your Account, you will receive Updates automatically. By continuing to use the Services following any Update, you hereby acknowledge and agree that the terms of this Agreement apply thereto.
1.3. Certain Restrictions . The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any Services or any portion of the Services, including the Website or App; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of Notnebia; (c) you shall not use any metatags or other “hidden text” using Notnebia’ name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services; (e) you shall not use any manual or automated software, devices or other processes (including, but not limited to, spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary to create publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you will not access any Services in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of any Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Services; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; and (j) you shall not attempt to adversely affect the Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Services. Notnebia and its licensors, suppliers and service providers reserve all rights not granted in this Agreement. Any unauthorized use of any Service terminates the licenses granted by Notnebia pursuant to this Agreement.
1.4. Third-Party Materials . As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Notnebia to monitor such materials and that you access these materials at your own risk.
2. REGISTRATION .
2.1. Registering Your Account . In order to access certain features of the Services, you may be required to become a Registered User. For purposes of this Agreement, a “Registered User” is a user who has registered an account on the Website or has an account with the provider of the App for the user’s mobile device (each, an “Account”). To register an Account, you must have purchased, or otherwise have access to, a subscription to the Services (e.g., Video On Demand library or an instructional course).
2.2. Registration Eligibility . You must be at least 18 years old (or the age of legal majority in your jurisdiction of residence) to register an Account with the Services. Minors under the age of 18 years old who can safely use the Services may participate in certain aspects of the Services, provided that they do so under their parent’s or legal guardian’s supervision and that such parent or legal guardian agrees to be bound by this Agreement. If you are a parent or legal guardian of a user under the age of 18 (or the applicable age of legal majority), you agree to be fully responsible for the acts and omissions of, including, without limitation, any content, information or other materials submitted by, on behalf of, or relating to, such user in connection with the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change the eligibility criteria at any time.
2.3. Registration Data . When registering your Account, you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by unauthorized users and agree not to share your Account or password with anyone. You further agree to notify Notnebia immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been prohibited from using any of the Services. You further agree that you will not maintain more than one Account for the same Notnebia Service at any given time. Notnebia reserves the right to remove or reclaim any usernames at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of Notnebia.
3.1. Types of Content . You acknowledge that all data, text, software, sounds, photographs, graphics, videos, messages, tags and/or other materials (collectively, “Content”) is the sole responsibility of the party from which such Content originated. This means that you, and not Notnebia, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services or data collected by or related to the Services and your use thereof (collectively, “Your Content”), and that you and other users of the Services, and not Notnebia, are similarly responsible for all Content they Make Available through the Services (“User Content”).
3.2. No Obligation to Pre-Screen Content . You acknowledge that Notnebia has no obligation to pre-screen Content (including, but not limited to, User Content), although Notnebia reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into this Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Notnebia pre-screens, refuses or removes any Content, you acknowledge that Notnebia will do so for Notnebia’ benefit, not yours. Without limiting the foregoing, Notnebia shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.
3.3. Certain Commitments Regarding Your Content . When you post or publish Your Content on or in the Services, you represent that: (i) you have all of the necessary rights to publish Your Content and grant Notnebia the license set forth below in Section 3.4; (ii) Notnebia will not need to obtain licenses from any third party or pay royalties to any third party; and (iii) Your Content does not infringe upon any third party’s rights, including intellectual property rights and privacy rights.
3.4. License to Your Content . You grant Notnebia a right to use and display Your Content (in whole or in part) for its own business purposes, including, without limitation, to operate and improve the Services, analyze Users’ use of the Services, and develop new products and services. Note that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services.
3.5. Storage . Unless expressly agreed to by Notnebia in writing elsewhere, Notnebia has no obligation to store any of Your Content that you Make Available via the Services. Notnebia has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Notnebia retains the right to create reasonable limits on Notnebia’ use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Notnebia in its sole discretion.
3.6. Other Restrictions on User Conduct . You agree not to use the Services for any purpose prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party to) (a) take any action or (b) make available any content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Notnebia’ prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or (v) impersonates any person or entity, including any employee or representative of Notnebia. You may not send any unsolicited e-mail message, commercial or non-commercial, to any e-mail address you have gathered from the Services.
3.7. Investigations . Notnebia may, but is not obligated to, monitor or review Services and Content at any time. Without limiting the foregoing, Notnebia shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the terms of this Agreement or any applicable law. Although Notnebia does not generally monitor user activity occurring in connection with the Services or Content, if Notnebia becomes aware of any possible violations by you of any provision of this Agreement, Notnebia reserves the right to investigate such violations, and Notnebia may, at its sole discretion, immediately terminate your license to use the Services, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
4.1. Services . Except with respect to Your Content and/or User Content, Notnebia and its suppliers own all rights, title and interest in the Services.
4.2. Trademarks . Notnebia’ stylized name and other related graphics, logos, trademarks, service marks and trade names used on or in connection with the Services are the property of Notnebia and may not be used without our written permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
4.3. Feedback . You agree that, with respect to any submission you might make to Notnebia of any ideas, suggestions, documents, and/or proposals (“ Feedback ”), Notnebia has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit any Feedback. You hereby grant to Notnebia the right to use any Feedback in any way at any time without any additional approval or compensation.
5. INTERACTIONS WITH OTHER USERS.
5.1. User Responsibility . You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that Notnebia reserves the right, but has no obligation, to intercede in such disputes. You agree that Notnebia will not be responsible for any liability incurred as the result of such interactions.
5.2. Content Provided by Other Users . The Services may contain User Content provided by other users. Notnebia is not responsible for and does not control User Content. Notnebia has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk.
6. THIRD-PARTY SERVICES.
6.1. Links . The Services may contain links to third-party services such as third party websites, applications, or ads (“Third-Party Services”). When you Notnebiack on a link to a Third-Party Service, we will not warn you that you have left the Services. Notnebia does not control and is not responsible for Third-Party Services. Notnebia provides links to these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such Third-Party Services. Your use of all Third-Party Services is at your own risk.
6.2. App Stores . You acknowledge and agree that the availability of the App is dependent on the third party from which you received the App license, e.g., the Apple App Store or Google Play Store (“App Store”). You acknowledge that this Agreement is between you and Notnebia and not with the App Store. Notnebia, not the App Store, is solely responsible for the Services, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Services, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce it.
6.3. Additional Terms for Apple Apps . With respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. In addition, the following terms apply to any App Store Sourced Application:
(a) You acknowledge and agree that (i) this Agreement is concluded between you and Notnebia only, and not Apple, and (ii) Notnebia, 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.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) 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 Notnebia 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 Notnebia.
(d) You and Notnebia acknowledge that, as between Notnebia 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, privacy, or similar legislation.
(e) You and Notnebia 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 Notnebia and Apple, Notnebia, 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 this Agreement.
(f) You and Notnebia acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
7. FEES AND PURCHASE TERMS.
7.1. Payment . You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Notnebia with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”). Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not to this Agreement to determine your rights and liabilities. By providing Notnebia with your credit card number and associated payment information, you agree that Notnebia is authorized to immediately invoice your Account for all fees and charges due and payable to Notnebia hereunder and that no additional notice or consent is required. You agree to immediately notify Notnebia of any change in your billing address or the credit card or PayPal account used for payment hereunder. Notnebia reserves the right at any time to change its prices and billing methods, either immediately upon posting on Services or by e-mail delivery to you.
7.2. Service Subscription Fees . You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your monthly or annual subscription. Except as set forth in this Agreement, all fees for the Services are non-refundable.
7.3. Taxes . Notnebia’ fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under this Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Notnebia, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify us for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Notnebia is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
7.4. Automatic Renewal . If you subscribe to the Services, your subscription will continue indefinitely until terminated in accordance with this Agreement. After each month or each year of your subscription (as applicable, depending on the term of the subscription option you have chosen) until you cancel, your subscription will automatically renew for an additional month or year, as applicable, at Notnebia’ then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription by emailing Notnebia at email@example.com . If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Notnebia to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Notnebia does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Notnebia may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
7.5. Free Trials and Other Promotions . Notnebia may, at its sole discretion, decide to offer free trial subscriptions or other promotional offers. Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription after you have cancelled Services prior to the end of the free trial or other promotion, please contact Notnebia.
7.6. Refunds . Except as set forth in any separate refund policy posted on the Services, all fees are non-refundable.
8. INDEMNIFICATION. You agree to indemnify and hold harmless Notnebia, its corporate parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each (collectively, the “ Notnebia Parties ”) from any damages, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any claims concerning: (a) Your Content; (b) your misuse of the Services; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Notnebia reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Notnebia in asserting any available defenses. This provision does not require you to indemnify any of the Notnebia Parties for any unconscionable commercial practice by such party or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your Account, this Agreement or your access to the Services.
9. DISCLAIMER OF WARRANTIES AND CONDITIONS.
9.1. As Is . YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE NOTNEBIA PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARISING FROM THE SERVICES. NOTNEBIA MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SERVICES WILL BE ACCURATE OR RELIABLE. ANY CONTENT ACCESSED THROUGH SERVICES, IS AT YOUR OWN RISK AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
9.2. No Liability for Conduct of Third Parties . YOU ACKNOWLEDGE AND AGREE THAT NONE OF THE NOTNEBIA PARTIES IS LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ANY NOTNEBIA PARTY LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES OR OF PRODUCTS OR SERVICES ACCESSIBLE OR MADE AVAILABLE VIA THE SERVICES, AND THAT THE RISK OF DAMAGES FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. NOTNEBIA MAKES NO WARRANTY THAT THE SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NOTNEBIA MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH SERVICES.
9.3. Professional Advice Disclaimer . THE SERVICES ARE DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN BEFORE ENGAGING IN ANY STRENUOUS PHYSICAL ACTIVITY. YOU SHOULD NOT RELY ON INFORMATION OR TRAINING PROGRAMS AVAILABLE IN OR VIA THE SERVICES, INCLUDING INFORMATION AND PROGRAMS TAILORED SPECIFICALLY FOR YOU, AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF INFORMATION AVAILABLE ON THE SERVICES OR COMMUNICATED TO YOU THROUGH THE SERVICES. THE USE OF INFORMATION PROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK.
NOTHING STATED OR POSTED ON THE SERVICES OR AVAILABLE THROUGH THE SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING, INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE.
9.4. Medical Disclaimer. In Subscribing to or otherwise using the services, you affirm that either your physician has approved your use of the services or that all of the following statements are true: (i) no physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician; (ii) you have never felt chest pain when engaging in physical activity; (iii) you have not experienced chest pain when not engaged in physical activity at any time within the past month; (iv) you have never lost your balance because of dizziness and you have never lost consciousness as a result of exertion; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) your physician is not currently prescribing drugs for your blood pressure or heart condition; (vii) you do not have a history of high blood pressure; and (viii) you do not know of any other reason you should not exercise and/or dance.
9.5. Safe Environment Disclaimer. ALWAYS BE AWARE OF YOUR SURROUNDINGS BEFORE BEGINNING USE. IN USING THE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE RESPONSIBLE FOR CREATING AND MAINTAINING A SAFE ENVIRONMENT FOR USE AT ALL TIMES. BECAUSE SERIOUS INJURIES MAY OCCUR FROM TRIPPING OR RUNNING INTO OR STRIKING WALLS, FURNITURE, OTHER OBJECTS OR PEOPLE, CLEAR AN AREA FOR SAFE USE BEFORE USING THE SERVICES. PLEASE TAKE SPECIAL CARE TO ENSURE THAT YOU ARE NOT NEAR ITEMS THAT YOU MAY HIT OR STRIKE, OR AREAS WHICH MAY CAUSE YOU TO LOSE YOUR BALANCE WHEN USING, OR IMMEDIATELY AFTER USING, THE SERVICES, LIKE OTHER PEOPLE, OBJECTS, STAIRS OR STEPS, RAMPS, SIDEWALKS, BALCONIES, OPEN DOORWAYS, WINDOWS, FURNITURE, OPEN FLAMES, CEILING FANS OR LIGHT FIXTURES, TELEVISIONS OR MONITORS OR OTHER THINGS. TAKE APPROPRIATE STEPS TO PREVENT PEOPLE OR PETS WHO DO NOT UNDERSTAND YOUR PERCEPTIONS ARE LIMITED FROM ENTERING YOUR DANCE SPACE.
10. LIMITATION OF LIABILITY.
10.1. Disclaimer of Certain Damages . TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE NOTNEBIA PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT NOTNEBIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. Disclaimer of Third-Party Conduct . YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT none of THE NOTNEBIA PARTIES shall be LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTIES ON THE SERVICES, INCLUDING WITHOUT ANY LIMITATION, ANY USERS OF THE SERVICES.
10.3. Cap on Liability . UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE NOTNEBIA PARTIES ARE LIABLE TO YOU EXCEED THE LESSER OF (A) THE TOTAL AMOUNT ACTUALLY PAID TO NOTNEBIA BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE OR REGULATION UNDER WHICH SUCH CLAIM ARISES, OR (C) ONE HUNDRED DOLLARS ($100).
10.4. User Content and Settings . THE NOTNEBIA PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
10.5. Basis of the Bargain . THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NOTNEBIA AND YOU.
10.6. Exclusions . THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
11. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. If you believe content posted on the Services infringes your copyright rights, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Correspondence to our Copyright Agent regarding notice of claims of copyright infringement should be addressed to: Notnebia, Attn: Copyright Agent, firstname.lastname@example.org.
12. TERMINATION. This Agreement will remain in full force and effect until terminated as set forth herein. You may terminate your Account, your access to the Services, and this Agreement at any time, for any reason by emailing email@example.com ; NOTNEBIA All
13. INTERNATIONAL USERS. The Services are controlled and offered by Notnebia from its facilities in the United States of America. Notnebia makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law. Notnebia reserves the right to limit the availability of the Website and/or Services to any person, geographic area, or jurisdiction it so desires at any time and in our sole discretion.
14. DISPUTE RESOLUTION . Please read the following arbitration agreement in this Section (“Arbitration Agreement ”) carefully. It requires you to arbitrate disputes with Notnebia and limits the manner in which you can seek relief from us.
14.1. Applicability of Arbitration Agreement . You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Notnebia, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify,; and (2) you or Notnebia may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
14.2. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
14.3. Authority of Arbitrator . The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Notnebia. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
14.4. Waiver of Jury Trial . YOU AND NOTNEBIA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Notnebia are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.5. Waiver of Class or Other Non-Individualized Relief . ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the state or federal courts located in the State of Georgia. All other disputes, claims, or requests for relief shall be arbitrated.
14.6. 30-Day Right to Opt Out . You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: firstname.lastname@example.org, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Notnebia username (if any), the email address you used to set up your Notnebia account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
14.7. Severability .Except as provided in Section 14.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
14.8. Survival of Agreement .This Arbitration Agreement will survive the termination of your relationship with Notnebia.
14.9. Modification . Notwithstanding any provision in this Agreement to the contrary, we agree that if Notnebia makes any future material change to this Arbitration Agreement, y ou may reject that change within thirty (30) days of such change becoming effective by writing Notnebia at the following address: Notnebia, email@example.com .
15. GENERAL PROVISIONS .
15.1. Electronic Communications . The communications between you and Notnebia use electronic means, whether you visit the Services or send Notnebia e-mails, or whether Notnebia posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Notnebia in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that Notnebia provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in “writing.” The foregoing sentence does not affect your statutory rights.
15.2. Assignment . This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Notnebia’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
15.3. Force Majeure . Notnebia shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
15.4. Questions, Complaints, Claims . If you have any questions, complaints or claims with respect to the Services, please contact our customer service department using the contact information available on the Services. We will do our best to address your concerns.
15.5. Exclusive Venue . To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Notnebia agree that all claims and disputes arising out of or relating to this Agreement that are not brought in a small claims court pursuant to Section 14.1 will be litigated exclusively in the state courts in Douglas County, Georgia or federal courts located in Georgia.
15.6. Governing Law . THIS AGREEMENT AND ANY ACTION RELATED HERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF GEORGIA CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW OR OTHER PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
15.7. Notice . Where Notnebia requires that you provide an e-mail address, you are responsible for providing Notnebia with your most current e-mail address. In the event that the last e-mail address you provided to Notnebia is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement, Notnebia’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Notnebia at the following address: Notnebia, firstname.lastname@example.org. Such notice shall be deemed given when received by Notnebia by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
15.8. Waiver . Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.9. Severability . Subject to Section 14.5, if any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
15.10. Export Control . You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Services, 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. You also will not use the Services for any purpose prohibited by U.S. law.
15.11 Entire Agreement . This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.