PLEASE READ AND CONSIDER THESE TERMS CAREFULLY AS THEY FORM A BINDING AGREEMENT BETWEEN YOU AND SPHERE AS TO YOUR USE OF THE SPHERE PLATFORM
This SPHERE CREATOR CONTRACT (the "Agreement") constitutes a legally binding agreement between Sphere, a community engagement platform ("Sphere") and you ("You" or "Your"). BY CHECKING THE BOX STATING THAT YOU HAVE READ AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AS PART OF YOUR REGISTRATION WITH SPHERE, YOU AGREE AND CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING ANY CHANGES TO THIS AGREEMENT OR ADDITIONAL POLICIES INCORPORATED BY REFERENCE WHICH SPHERE MAY MAKE IN ITS SOLE DISCRETION IN THE FUTURE, FOR AS LONG AS YOU USE THE SPHERE PLATFORM.
BY USING THE SPHERE PLATFORM, YOU (a) AGREE THAT THIS AGREEMENT GOVERNS YOUR USE OF THE SPHERE PLATFORM, THE SPHERE SERVICES, AND ANY GOODS OR SERVICES PURCHASED USING THE SPHERE PLATFORM, (b) REPRESENT AND WARRANT THAT YOU (i) ARE AT LEAST 18 YEARS OLD AND THE AGE OF MAJORITY; (ii) YOU HAVE READ THESE TERMS IN THE ENTIRETY; (iii) AGREE TO BE BOUND BY ALL OF THE TERMS AND BE HELD LIABLE FOR ANY NONCOMPLIANCE WITH THE TERMS; AND (iv) YOU HAVE THE CAPACITY TO ENTER INTO THESE TERMS SO AS TO BIND YOU TO THEM. IF YOU DO NOT AGREE TO THESE TERMS OR ARE UNABLE TO COMMIT TO THE FOREGOING, DO NOT ACCESS OR USE THE SPHERE PLATFORM.
PLEASE NOTE THAT THESE TERMS CONTAIN A PROVISION THAT REQUIRES YOU TO RESOLVE DISPUTES (EXCEPT IN CERTAIN CIRCUMSTANCES ON AN INDIVIDUAL BASIS) AND WAIVES RIGHTS TO JURY TRIALS AND CLASS ACTION LAWSUITS. IF YOU RESIDE AND PURCHASE PRODUCTS OR SERVICES USING THE SPHERE PLATFORM IN A JURISDICTION THAT PERMITS YOU TO OPT-OUT OF SUCH REQUIREMENTS, YOU MUST DO SO WITHIN THIRTY (30) DAYS OF FIRST ENTERING INTO THIS AGREEMENT (OR SUCH LONGER PERIOD AS SUCH LAW MANDATES FOR OPTING OUT).
Subject to the terms and conditions of this Agreement, Sphere hereby grants to You a non-exclusive, revocable, right and license, without right to sublicense, to use, solely for the purposes set forth in this Agreement; (i) Sphere 's proprietary online platform (Sphere), (ii) the websites located at www.sphereapp.com (iii) any servers, computers, or networks used to provide such website and platform, and (iv) any services offered on the Sphere platform (the foregoing (i) - (iv), individually and collectively, the "Sphere Platform"). In the event You transfer Your account or ownership of any Product, as defined below, You shall ensure that any purchasers or assignees are bound by the terms of this Agreement.
In addition to any other rights or remedies afforded Sphere under or otherwise in connection with this Agreement, You agree and acknowledge that You have read and agree to comply with the following policies which are hereby incorporated by reference into, and made a part of, this Agreement:
· Creator and Products Requirements Policy
· Digital Millennium Copyright Act ("DMCA") and Trademark Policy
· Sphere's Return and Subscription Cancellation Policy
· Accounting Policy
· Sphere Privacy Policy
· Sphere Privacy Notice for California Residents
· Security Policy
· Network Abuse Policy
· Platform Abuse Policy
· Legal Notice
· Sphere Prohibited Products and Activities Policy
1. REGISTRATION.
a. You will be required to register for an account in order to use certain services on the Sphere Platform. When You provide information during the registration process, You agree to provide only true, accurate, current, and complete information and to update it as necessary to maintain its truth and accuracy.
b. If You register for a Sphere account, You agree to accept responsibility for all activities that occur under Your account or password, if any, and You agree You will not sell, transfer, or assign Your subscription or any subscriber rights. You are responsible for maintaining the confidentiality of Your password, if any, and for restricting access to Your computer (or other Internet access device, as applicable) so that others may not access the password protected portion of the Sphere Platform using Your account information in whole or in part. Sphere reserves the right to terminate Your account or otherwise deny You access in its sole discretion without notice and without liability.
2. PROMOTING YOUR PRODUCTS.
If You promote, market, or otherwise advertise ("Promote" or "Promotion") any product or service for sale via the Sphere Platform (a "Product"), You agree, acknowledge, represent, and warrant that:
a. You will abide by Sphere's Return and Subscription Cancellation Policy.
b. You will not make any unlicensed or unauthorized use of, or otherwise infringe, violate, or misappropriate any patent, copyright, trademark, trade secret, right of privacy, right of publicity, or other intellectual property, or other proprietary right (collectively "IP Rights") of any entity or individual.
c. If You Promote Products which are subject to higher regulatory scrutiny or risks, as determined by Sphere in its sole discretion, You must be in compliance with the additional terms and conditions provided to You by Sphere from time to time for the Promotion of such Products, which additional terms are incorporated into this Agreement by this reference.
d. You will not Promote violence, sexually explicit materials, Products or other medium that contain, host or promote illegal content or material, illegal activities, alcohol, tobacco, or prescription drugs, or that discriminate or Promote discrimination based upon race, sex, religion, nationality, disability, sexual orientation, or age.
e. You will not Promote any Products to children under the age of thirteen (13).
f. You will not defame any person or entity.
g. You will not include any trademarks or other brand identifiers, or any copyrighted materials, other than as expressly permitted by this Agreement.
h. All communications and representations made by You in connection with any Promotions or in relation to any Product will be accurate and contain all disclosures and disclaimers necessary to prevent such Promotions from being false or deceptive. Such disclosures and disclaimers must be made in a clear and conspicuous manner and will otherwise comply with Your country's laws, all U.S. federal and state laws, including U.S. Federal Trade Commission ("FTC") regulations, policies and guidelines governing advertising, disclosure and consumer protection, including the FTC's Endorsement Guidelines, and any other laws applicable to such Promotion.
i. Sphere reserves the right but is not obligated to review Your Promotions. You agree that Sphere, in its sole discretion and at any time, may require changes to Product Promotion, customer support or other items related to the content of Your Promotions.
j. You will provide valid contact information, including but not limited to a working email address, where Sphere can send inquiries and receive a non-automated reply by end of the following business day. You will keep all such information accurate and current with Your account.
k. Sphere does not independently review, verify, guarantee, or assume any responsibility or liability for, the accuracy, completeness, efficacy, or timeliness of any information provided by Creators, nor is it responsible for any bonuses, prizes or other incentives offered by Creators via the Sphere Platform. You acknowledge and understand that Sphere does not verify statements, claims, incentives, or Promotions made by Creators via the Sphere Platform.
l. You will provide in an accurate and complete manner all information necessary for Sphere to comply with the Integrity, Notification, and Fairness in Online Retail Marketplaces for Consumers Act, 15 U.S.C §45(f) (the "INFORM Consumers Act"), and update such information as necessary for Sphere to remain in compliance with the INFORM Consumers Act.
m. You will comply with all applicable laws, rules and regulations, and will not interfere with any other user's business or use of the Sphere Platform.
n. Sphere reserves the right to take any action against You for violating this Section 2, including account suspension and termination, in accordance with Section 4.c.
3. SELLING PRODUCTS.
If You offer any Products for sale via the Sphere Platform, You agree, acknowledge, represent, and warrant that:
a. All Products You offer for sale via the Sphere Platform, and the offering and sale thereof, via the Sphere Platform, comply with all of Your country's laws, and all applicable U.S. federal and state laws and regulations, and any other laws applicable to the Product or Promotion.
b. Your Products do not involve downloading software on the computer of a person or entity purchasing a Product (the "Purchaser") unless a purchase is completed or You provide the Purchaser a clear and conspicuous disclosure describing all of the software being downloaded and its functionality, and You obtain express consent prior to any such downloads.
c. You will provide in an accurate and complete manner all information necessary for Sphere to comply with the Integrity, Notification and Fairness in Online Retail Marketplaces for Consumers Act,5 U.S.C. §45(f) (the "INFORM Consumers Act") and update such information as necessary for Sphere to remain in compliance with the INFORM Consumers Act.
d. You will receive messages from Purchasers through Sphere and You will provide a reply by end of the following business day. Purchasers and Sphere must also be able to receive a non-automated response within one business day, when necessary.
e. You will notify Sphere of any regulatory or legal complaints, or threats of such complaints, that You receive in connection with or in relation to a Product within two business days of Your receipt of such complaint. You shall assist Sphere, at Your sole cost and expense, in taking any necessary or appropriate actions reasonably requested by Sphere to respond to and/or resolve such complaints.
f. Sphere will collect and remit state or local transfer taxes for any retail transaction (including but not limited to sales or use tax) where it believes it is legally required to do so. Where Sphere does not collect and remit state or local transfer taxes on a transaction, You may have the legal obligation to pay such taxes. Such obligation may arise as a result of Your existing or past physical contacts with a state. You may wish to consult a tax professional to determine if You will have this type of obligation in any particular state. You agree that if such an obligation arises with respect to any particular state, You will be solely responsible for the timely payment of such tax and any interest or penalties.
g. You will comply with all applicable laws, rules, and regulations.
4. AVAILABILITY OF SERVICES; SUSPENSION; TERMINATION.
You agree and acknowledge that:
a. Subject to the terms and conditions of this Agreement and Sphere's policies and procedures, Sphere shall use commercially reasonable efforts to provide the Sphere Platform in a manner that will not disrupt Your business. You acknowledge and agree that from time-to-time the Sphere Platform may be inaccessible or inoperable, including, without limitation, due to: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that Sphere may undertake from time to time; or (iii) causes beyond the reasonable control of Sphere or that are reasonably unforeseeable by Sphere, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that Sphere is not liable for any periodic interruptions in availability of the Sphere Platform and further acknowledge that Sphere does not guarantee access to the Sphere Platform on a continuous and uninterrupted basis.
b. Sphere may decline, delist, or halt sales or Promotion of any Product from Sphere, suspend funds, adjust Commissions based on performance, close an account, suspend or terminate the Sphere Platform at any time, in its sole discretion, without cause or notice to You or any penalty or liability for doing so.
c. Sphere, in its sole discretion, may suspend or terminate Your account and Your rights to use the Sphere Platform and Sphere may retain any or all funds (including future funds that may accrue) in Your Sphere account, if: (i) Sphere suspects or has reason to believe, or if a person otherwise claims that You have violated the law or breached any term of this Agreement; (ii) Your account becomes dormant as defined in Sphere's Accounting Policy; or (iii) or Your account experiences or is reasonably anticipated to experience a negative balance. Upon such termination, You agree to immediately cease all use of the Sphere Platform and Sphere’s intellectual property licensed in Section 7.b. of this Agreement. Without limiting the foregoing, Sphere shall have the right to immediately terminate Your access and use of the Sphere Platform, or any portion thereof, and to seize funds in Your account, in the event of any conduct which Sphere, in its sole discretion, considers to be unacceptable.
d. Following suspension or termination of an account or retaining of funds pursuant to this Section, Sphere will review Your account in a manner determined by Sphere in its sole discretion. You agree to cooperate with this review, if asked. If the review concludes that there is a reasonable basis to believe misconduct has occurred, You agree that Sphere may retain funds in Your Sphere account as liquidated damages and for the benefit of Sphere or third parties affected by the misconduct. You acknowledge and agree that such liquidated damages: (i) are not a penalty, and (ii) are reasonable and not disproportionate to such presumed damages to Sphere.
e. Sphere may withhold any portion of the funds in Your Sphere account if Sphere, in its sole discretion, determines such action is necessary to secure payment for, performance of, and/or assurances regarding any liabilities, obligations, or indebtedness You may have incurred with Sphere or any other person or entity.
5. EMAIL, TEXT MESSAGES AND TELEMARKETING.
a. If You send, or cause to be sent any emails through Sphere in connection with the direct or indirect Promotion or sale of any Product or Your use of the Sphere Platform, then You agree, acknowledge, represent and warrant that all such Emails shall be in compliance with all applicable federal and state laws and regulations regarding the use of electronic messages, including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM Act") and the Children's Online Privacy Protection Act ("COPPA") (Information on these laws can be found at https://www.ftc.gov/spam/ and https://www.ftc.gov/privacy/privacyinitiatives/childrens.html).
b. You shall not directly or indirectly exploit documented or undocumented security holes on any client or server machine or obtain email addresses via automated means or send any email to any address which was obtained via automated means or the use of spyware, viruses, or other means of bypassing system security or invading consumer privacy.
c. If You send, or cause to be sent, any text messages or use or procure telemarketing activities in connection with the direct or indirect Promotion or sale of any Product or Your use of the Sphere Platform, then You represent and warrant that all such text messages or calls will be in full-compliance with all applicable federal and state laws and regulations that apply to sending electronic messages and using telemarketing activities, including without limitation regulations issued by the FTC, the Federal Communications Commission ("FCC"), the CAN-SPAM Act, the Telephone Consumer Protection Act ("TCPA") and state laws regarding anti-spam, text messages and Do-Not-Call Registries (Information on these laws can be found at https://www.fcc.gov/sites/default/files/tcpa-rules.pdf, https://www.fcc.gov/guides/spam-unwanted-text-messages-and-email, and https://www.ftc.gov/privacy/privacyinitiatives/childrens.html).
d. You may not use customer information for any purpose not expressly permitted by law, regulation, and this Agreement. Any use of customer information other than as expressly permitted may result in termination of Your account, in addition to any other legal actions or remedies Sphere or individual data subjects may have.
6. SPHERE'S IP RIGHTS.
a. Except as set forth in Section 7.b., You may not use Sphere's name, trademarks, service marks, or any other IP Right of Sphere in any manner whatsoever to suggest association or affiliation with or endorsement by Sphere without the express prior written consent of Sphere, which Sphere may withhold at its sole discretion. Promotional use of images or reproductions of payment checks issued by Sphere without the express, written consent of Sphere is prohibited.
b. Subject to the following terms and conditions, during the term of this Agreement Sphere grants You a limited, revocable license to use Sphere's name (Sphere): (i) as a watermark, Internet search engine description, keyword, search term or seeding element with any Internet search engines or keyword-triggered advertising programs; (ii) in metatags or hidden text (iii) as a sub domain or second or third level domain name identifier; (iv) to identify Products or (v) in connection with Promotions.
c. Sphere may revoke the foregoing license and/or provide restrictions upon Your use of Sphere's “Sphere” name, including requiring the use of such disclaimers as Sphere may provide, in connection with Your use of Sphere's “Sphere” name, at any time and for any reason in Sphere's sole discretion.
d. Failure to comply with any restrictions imposed by Sphere upon Your use of Sphere's “Sphere” name or failure by You to immediately cease all use of Sphere's “Sphere” name if so instructed by Sphere shall constitute: (i) a breach of the limited license set forth in this Section 7.b.; and (ii) a breach of this Agreement. In such case, Sphere reserves the right to pursue any and all remedies available to it at law or in equity.
e. You may not use or display Sphere's “Sphere” name in any manner to disparage Sphere or the Sphere Platform.
f. Notwithstanding the limited revocable license set forth in Section 7.b., as between the parties, Sphere shall be and remain the sole owner of all right, title and interest in and to the Sphere Platform (including, without limitation, all IP Rights therein) and any other IP Rights, materials or other properties owned, licensed, or controlled by Sphere, and You hereby assign to Sphere all right, title and interest You may be deemed to have therein. All rights not specifically granted to You under this Agreement are expressly reserved by Sphere
7. CONFIDENTIALITY & NON-DISCLOSURE OBLIGATIONS.
a. In connection with this Agreement, Sphere may disclose to You and You may otherwise receive or have access to sensitive, confidential, or proprietary information of Sphere (collectively, "Confidential Information"), including, but not limited to (i) the identities of other members or creators within Sphere (collectively, "Sphere Clients"); (ii) physical and data security information; (iii) technical data; or (iv) know-how or business information relating to business processes, methods, or marketing strategies. Except as required to perform Your obligations under and in accordance with the terms of this Agreement, You shall not (A) disclose the Confidential Information to any person or entity, or (B) use the Confidential Information (whether for Your own benefit or the benefit of any other person or entity), without the express prior written consent of Sphere. You may not use any Confidential Information for the purpose of soliciting, or to permit others to solicit, Sphere Clients to subscribe to any other services or promote the sale of any products which compete, either directly or indirectly, with Sphere or the Sphere Platform. You agree and acknowledge that Sphere may be required to provide to governmental agencies or other third parties information in its possession regarding You or the business You conduct with Sphere.
b. Sphere does not invite and cannot accept any ideas or information You consider to be confidential or proprietary. Except with respect to Your personally identifiable information (as expressly provided for in the Sphere Privacy Policy), any suggestions, submissions, comments, ideas, concepts, know-how, techniques material or feedback conveyed, offered or transmitted by You to Sphere, or otherwise in connection with the Sphere Platform (collectively, the "Submissions"), shall be deemed to be non-confidential and non-proprietary and Sphere shall have no obligation of any kind with respect to such Submissions, unless otherwise expressly agreed to in a writing executed by You and a duly authorized officer of Sphere You hereby grant to Sphere and its licensees a worldwide, perpetual, non-exclusive, fully-paid, royalty-free, transferable right and license, with right to sublicense, to reproduce, publicly display, distribute, perform, transmit, edit, modify, create derivative works of, publish, sell, commercially exploit, use, and disclose the Submissions for any purpose and in all forms and all media whether now known or to become known in the future. Sphere shall have no obligation to compensate You for any such Submissions in any manner. You hereby represent and warrant that: (i) You own or otherwise have the right to grant the foregoing license to Sphere with respect to Your Submissions; and (ii) Your Submissions and any use thereof by Sphere will not infringe or violate the rights of any person or entity. You are and shall remain solely responsible for the content of any Submissions You make and acknowledge that Sphere is under no obligation to respond to or use any Submission You may provide.
8. EXPORT CONTROL.
You acknowledge and agree to comply with all applicable export laws, including the U.S. Export Administration Act, the Arms Export Control Act, the International Economic Emergency Powers Act, and the Foreign Corrupt Practices Act, and regulations issued pursuant to these and other U.S. laws. You hereby represent and warrant that any Product Promoted, offered and/or provided by You via the Sphere Platform is approved for export to and from the United States without additional authorization or licensing from the U.S., or any other, government. Should the export authorization status of Your Products change, You must immediately notify Sphere in writing. Information on U.S. export control regulations can be found on the Commerce Department's website at https://www.bis.doc.gov, the State Department's website at https://www.pmddtc.state.gov and the U.S. Treasury Department's website at https://www.treas.gov/offices/enforcement/ofac/index.shtml.
9. REQUIRED PERMITS.
It is Your sole responsibility to obtain and maintain all applicable licenses and permits required for the operation of Your business.
10. REPRESENTATIONS AND WARRANTIES.
You represent, acknowledge and warrant that:
a. You, Your Products, Your Promotions, and/or Your Submissions, as applicable, do not and will not, directly, or indirectly: (i) violate the right of privacy or publicity of any person or entity; (ii) contain any libelous, obscene, indecent, or otherwise unlawful material; (iii) infringe any IP Rights in any jurisdiction or otherwise contravene any rights of any person or entity; (iv) violate any laws, FTC rules, regulations, guidelines, or industry standards; or (v) violate the Sphere Privacy Policy.
b. You may not: (i) frame, copy or mirror any content forming part of the Sphere Platform; (ii) reverse engineer the Sphere Platform or otherwise attempt to derive its source materials; (iii) access the Sphere Platform for the purpose of (a) building a competitive product or service, or (b) copy any features, functions or graphics of the Sphere Platform; (iv) interfere with or disrupt the Sphere Platform or any data contained therein; (v) attempt to gain unauthorized access to the Sphere Platform, its related systems or networks; or (vi) use the Sphere Platform for any unlawful purpose or in violation of the rights of any person or entity.
11. INDEMNIFICATION.
To the fullest extent permitted by law, You agree that:
a. In the event a third party makes any demand or complaint, or commences any action, or files any claim whatsoever ("Claim") in connection with Your use of the Sphere Platform, Your Products, or Your Promotions, You shall defend, indemnify, and hold harmless Sphere, its related parties and its and their affiliates, and its officers, directors, employees, representatives, agents, licensors, attorneys, heirs, successors, and assignees (the " Sphere Parties"), from and against any and all damages, liabilities, claims or costs (including the costs of investigation, defense, reasonable attorneys' fees and costs) ("Losses") incurred by any Sphere Party as a result of such Claim, regardless of whether such Losses are direct, incidental, consequential, punitive or statutory.
b. Upon receiving notice of a Claim for which Sphere is entitled to indemnification by You, Sphere shall provide You with written notification and the opportunity to assume sole control over the defense or settlement of the Claim and reasonable assistance to settle or defend the Claim at Your sole expense; provided, however, that (i) any settlement which would impose a non-monetary obligation on, or admission or finding of liability or wrongdoing by Sphere will require Sphere's prior written consent; (ii) the failure to provide timely notice, control, or assistance shall not relieve You of Your indemnification obligations; and (iii) Sphere may have its own counsel present at and participating in all proceedings or negotiations relating to a Claim, at Sphere's own expense, unless You fail or refuse to secure legal counsel to defend any Claim in a timely manner, in which case You shall pay all expenses related to Sphere's use of counsel.
c. In the event that Sphere incurs costs, attorneys' fees or other expenses responding to any complaint other than a Claim, in connection with or in relation to Your Products or Promotions, including copyright infringement complaints under the DMCA, Sphere reserves the right, in its sole discretion, to recover such costs and expenses by deducting a reasonable, commensurate amount from any monies owed to You by Sphere up to a maximum of ten thousand dollars ($10,000) per event. In the event that Sphere incurs any Losses relating to Your violation of Sphere's Email/Text Message/Telemarketing policy, as set forth in Section 5 above, Sphere reserves the right, in its sole discretion, first to recover such Losses by deducting a reasonable, commensurate amount from any monies owed to You by Sphere up to a maximum of twenty thousand dollars ($20,000) per event. You understand and agree that the remedies set forth above are not exhaustive and that Sphere retains all rights to indemnification described herein. You authorize Sphere to make, and release Sphere from any liability in connection with, any such deductions.
12. LIMITATIONS OF LIABILITY.
IN NO EVENT SHALL ANY SPHERE PARTY, OR ITS HEIRS, SUCCESSORS AND ASSIGNS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF, RESULTING FROM, OR IN CONNECTION WITH THIS AGREEMENT OR ANY (A) USE OF OR INABILITY TO USE THE SPHERE PLATFORM, (B) PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES OF ANY KIND, RESULTING FROM YOUR ACCESS TO OR USE OF THE SPHERE PLATFORM, (C) UNAUTHORIZED ACCESS TO OR USE OF ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SPHERE PLATFORM, OR (E) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SPHERE PLATFORM, WHETHER OR NOT SPHERE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE MAXIMUM CUMULATIVE AND AGGREGATE LIABILITY OF SPHERE FOR ALL COSTS, LOSSES OR DAMAGES FROM CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNTS DUE AND PAYABLE BY SPHERE TO YOU UNDER THIS AGREEMENT FOR THE MONTH IMMEDIATELY PRECEDING THE DATE UPON WHICH SUCH DAMAGES ACCRUE. THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE SPHERE PLATFORM, AND ANY SERVICES OR INFORMATION OFFERED THROUGH THE SPHERE PLATFORM, WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, IN SUCH JURISDICTIONS, YOU AGREE THAT THE LIABILITY OF SPHERE SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.
13. DATA PROCESSING.
a. You agree to comply with all data protection laws and regulations, including the E.U.’s and U.K.'s data protection regulations, the General Data Protection Regulation (“GDPR”). You agree not to market to persons subject to GDPR who have not consented to receive marketing communications.
b. Persons subject to GDPR are entitled to demand that You take certain actions with respect to their data, including, without limitation, that You delete it, correct it, or restrict processing of it. If You receive a data request from a person subject to GDPR, or if Sphere receives any such request with respect to data You are processing, You agree to honor the request within 30 days. You agree to implement appropriate systems and processes to comply with this requirement.
c. If You receive any personal data from Sphere or process personal data on Sphere’s behalf, You will: (i) implement appropriate technical and organizational measures to ensure the security of the data; (ii) only process personal data for purposes approved by Sphere; (iii) cease processing such data upon request from Sphere; (iv) transfer such data only for purposes authorized by law, with prior notification to Sphere, and only pursuant to an appropriate sub processing agreement; (v) indemnify Sphere for any claim, expense, demand or cost related to Your receipt or use of such data; and (vi) upon request, provide Sphere with information sufficient to demonstrate Your compliance with this Section, and allow Sphere to audit Your data practices, if necessary, in Sphere’s sole discretion.
14. NO GUARANTEE OF VALIDITY.
Sphere does not endorse, approve, or certify any information provided on or through the Sphere Platform, nor does it guarantee the accuracy, completeness, efficacy, timeliness, or correct sequencing of such information. Information provided on or through the Sphere Platform may or may not be current as of the date of Your access, and Sphere has no duty to update and maintain such information. Additionally, the information provided on or through the Sphere Platform may be changed periodically without prior notice. All content provided on or through the Sphere Platform is provided "AS IS." Use of such information is voluntary, and reliance on it should only be undertaken after an independent review of its accuracy, completeness, efficacy, and timeliness.
15. NO PROFESSIONAL ADVICE.
Sphere provides professional information (for example, financial, or compliance) for informational purposes only, which should not be construed as legal or accounting advice. You should seek independent professional advice from a person who is licensed or knowledgeable in the applicable area before acting upon any information, fact or opinion provided on or through the Sphere Platform. You understand that Sphere employees, representatives, or agents do not provide advice pursuant to the authority of professional certifications or licenses and You will not treat information provided by employees, representatives, or agents as such. You further understand that by receiving information, facts, or opinions on or through the Sphere Platform, You are not entering into a relationship with Sphere, nor its employees, representatives, nor agents that entitles You to client privileges that may be associated with any professional certifications or licenses.
16. DISCLAIMER.
YOU ASSUME ALL RISK AND RESPONSIBILITY FOR YOUR DECISION TO USE THE SPHERE PLATFORM. THE SPHERE PLATFORM AND ALL RELATED SERVICES ARE OFFERED "AS IS" AND SPHERE DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER SPHERE NOR ITS RELATED PARTIES AND AFFILIATES ENDORSE OR ARE RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY INFORMATION, FACT, OR OPINION PROVIDED ON OR THROUGH THE SPHERE PLATFORM.
17. GENERAL TERMS AND CONDITIONS.
a. Governing Law; Dispute Resolution, Attorney Fees. You agree that Idaho law will govern this Agreement and that any action, suit, proceeding, or claim arising out of or related to this Agreement must be brought exclusively in federal or state courts located in Boise, Idaho. You hereby submit to the in personam jurisdiction and venue of such courts and waive any objection based on inconvenient forum. You agree to indemnify Sphere for all of its reasonable attorney fees and costs incurred as a result of any action, suit, proceeding, or claim brought by You or Sphere in which Sphere is found to be the prevailing party. UNLESS YOU RE PERMITTED BY THIS AGREEMENT AND APPLICABLE LAW TO OPT-OUT OF SUCH PROVISIONS (i) YOU HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM OR COUNTERCLAIM ARISING UNDER OR IN RELATION TO THIS AGREEMENT, and (ii) YOU AND SPHERE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE ACTION. If You are permitted by law to opt out and elect to do so, You must send a written letter postmarked no later than thirty (30) days (or, if applicable law mandates a longer period, then the shortest period permitted by such applicable law) from when You first entered this Agreement to: Sphere (Sphere), Attn: Class Action Opt-Out, 9169 W State St #3568
Boise, Idaho 83714 with Your full name, address, and the location where You entered the Agreement, the date You entered into the Agreement, and the provisions within this Section which You are expressly opting-out.
b. English is Governing Language. This Agreement is in English and all disputes between the parties shall be resolved in English. You understand and acknowledge that any foreign language services provided by Sphere are for informational purposes only and it is Your obligation to obtain independent legal advice at Your own expense to ensure You understand the terms of this Agreement.
c. Sphere's Relationship. This Agreement does not create any relationship of principal and agent, partners, joint venturers, employer and employee, fiduciary, or similar relationship between the parties. You are prohibited from making any promise, warranty, or representation on behalf of Sphere or obligating Sphere in any way. You may not represent to any person or entity that You are the agent of Sphere or are authorized to act on its behalf.
d. Assignment. Sphere may freely assign or transfer any or all of the rights and obligations described in this Agreement. You may not assign this Agreement or any of Your rights and duties hereunder without the prior written consent of Sphere This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
e. Severability. If any provision of this Agreement is determined by a court to be unenforceable or invalid, the validity of the remaining parts, terms or provisions shall not be affected by that determination, and such court shall substitute a provision that is legal and enforceable and is as close to the intentions underlying the original provision as possible.
f. Publicity. You may not issue or make any publicity release (including press releases and advertising or solicitation materials) or other public statement: (i) relating to this Agreement; (ii) using Sphere 's name or referencing the Sphere Platform; or (iii) suggesting or implying any endorsement by Sphere of You and/or any Products without the prior written approval of Sphere, which Sphere may withhold in its sole discretion. You hereby authorize Sphere to include Your name, business name, and general information about Your use of the Sphere services in Sphere’s marketing and promotional materials.
g. Entire Agreement; Amendment. This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. It supersedes all prior proposals, understandings, and all other agreements, oral and written, between the parties relating to this subject matter. Sphere reserves the right to amend this Agreement at any time. When Sphere amends this Agreement, Sphere shall make reasonable efforts to provide You with general, not specific, notice of such changes by posting a conspicuous announcement at https://www.sphereapp.com that such changes or amendments have occurred and identifying which particular provisions have changed. Such announcement shall be maintained for no less than 30 days following the effective date of such amendment. Your continued use of the Sphere Platform, following the posting of such amendment will signify and be deemed Your assent to and acceptance of the revised Agreement. You agree that You have the burden to review periodically https://www.sphereapp.com to inform Yourself of any such changes.
h. Waiver. The waiver or failure by Sphere to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. The rights and remedies of Sphere set forth in this Agreement are cumulative and are in addition to any rights or remedies Sphere may otherwise have at law or equity, except with respect to any sole and exclusive remedies expressly provided for herein.
i. Equitable Actions. You acknowledge and agree that any breach or threatened breach of this Agreement may cause immediate and irreparable harm to Sphere which would not be adequately compensated by monetary damages and that Sphere may seek injunctive relief, specific performance, and other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond or other security. Notwithstanding any other provision of this Agreement, any such relief may be sought in the state or federal courts of the State of Idaho or any other court of competent jurisdiction anywhere in the world (at Sphere's sole discretion), and, You hereby consent to the jurisdiction of any such court and waive any objection to venue laid therein. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
j. Force Majeure. You nor Sphere shall be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, boycotts, changes in governmental regulations, epidemics, fire, communication line failures, power failures, earthquakes, other disasters, or any other reason where failure to perform is beyond the control of, and not caused by, the non-performing party.
k. Notices. Any notice, request, approval, authorization, consent, demand or other communication required or permitted pursuant to this Agreement shall either be via the Sphere Platform or in writing and shall be deemed given on the earliest of: (i) actual receipt, irrespective of the method of delivery; (ii) the time of transmission from Sphere if sent via email, as date stamped by Sphere's systems; (iii) on the delivery day following dispatch if sent by express mail (or similar next day air courier service); or (iv) on the sixth (6th) day after mailing by registered or certified United States mail, return receipt requested, postage prepaid and addressed to the last address provided by a party.
l. Headings/Interpretation. The section headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement.
m. Survival. Such terms which by their language and understanding are intended to survive expiration or termination, shall survive termination or expiration of this Agreement.