Effective date: February 17, 2022
HOMER (also known within this document as “Conscious Content Media”, “we”, or “us”) endeavors to provide a safe and friendly educational environment for its users. Our Services include our mobile applications, our website (“Sites”), Products and other features, content and functionality offered by us from time to time in connection with our Sites. All references to “you” or “your” mean the person who accesses, and/or uses the Services in any manner, and their heirs, successors, and assigns.
IMPORTANT NOTICE: DISPUTES ABOUT THESE TERMS ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE “CLASS ACTION WAIVER AND ARBITRATION” PROVISIONS BELOW IN SECTION 6.2.
1. GENERAL TERMS AND LICENSE
1.1 Governing Agreement
If you consent in accordance with the HOMER Messaging Terms & Conditions, your use of the Services is also governed by those Terms & Conditions and you agree to receive recurring automated promotional and personalized marketing text (e.g., SMS and MMS) messages from HOMER unless you opt-out.
“Account Fee” – is a fee for any Product or Service associated with a user Account including but not limited to Subscription Fees for access to Premium Services.
“Account Owner” – is a parent or guardian who has created an account on https://learnwithhomer.com and/or Conscious Content Media's mobile applications, which may be used by a child. Account Owners have access to varying levels of functionality and content, depending on subsequent in-app purchases made by the Account Owners.
“Activity Kit” – refers to a collection of games, toys, stickers, and other hands-on activities, purchased on a subscription basis together with access to Conscious Content Media's Premium Services, physically packaged together and mailed to an Account Owner on a periodic basis, according to subscription terms.
“Member” – is an Account Owner who has an active subscription to access Conscious Content Media's Premium Services.
“Membership” – is a membership of a Member who has subscribed to Conscious Content Media's Premium Services.
“Parent” – is an Account Owner that is a parent or legal guardian.
“Postings” – text, messages, ideas, concepts, suggestions, stories, screenplays, treatments, formats, artwork, photographs, drawings, videos, audiovisual works, musical compositions, sound recordings, characterizations, your and/or other persons' names, likenesses, voices, usernames, profiles, actions, appearances, performances and/or other biographical information or material, and/or other similar materials that you submit, post, upload, embed, display, communicate or otherwise distribute through the Site’s Art Space Feature.
“Products” – tangible items, including Activity Kits, which may be purchased on Conscious Content Media’s websites and/or mobile applications, and as available through other channels and retailers.
“Premium Services” – collectively, Conscious Content Media's mobile applications, educational content, Products, games, related services, and areas of Conscious Content Media's websites accessible only by Member Account Owners.
“Services” – collectively, Conscious Content Media’s mobile and web applications, educational content, Products, games, related services, and Conscious Content Media’s websites.
“Sites” – Conscious Content Media’s mobile applications and its website.
“Subscription Fee” – is a fee for access to Premium Services available only to Members.
“You” – in reference to you as the Account Owner and your Child, whom you have granted access to the Services.
1.4 Eligibility for Use
1.6 Grant of a Limited License to Use the Services
1.7 Accessing the Service
You must provide all equipment and software necessary to connect to the Services, including, but not limited to, a mobile device that is suitable to connect with and use the Services, in cases where the Services offer a mobile component.
You are responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
1.8 Account Information
You are solely responsible for maintaining the confidentiality of the login information, and you will be responsible for all uses of the login information and anything that happens through your account. Conscious Content Media will not be liable for any loss, damages, liability, expenses, or attorneys’ fees that you may incur because of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, liability, damages, expenses, and attorneys’ fees incurred by Conscious Content Media or a third party due to someone else using your account.
Conscious Content Media reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates such third party’s rights.
1.9 Account Fees
Conscious Content Media may charge an Account Fee or Subscription Fee for access to certain Services. All fees are payable in accordance with payment terms in effect at the time when the fee becomes payable. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering.
1.9.1 Authorization to Charge for Use of Services
You must provide accurate and complete information for a valid payment method that you are authorized to use (such as a credit card, payment via the App Store, or other payment method accepted by us to activate and maintain an account). You authorize Conscious Content Media to charge you through the payment method that you use when you register for access to Premium Services. You are also responsible for charges for any Products or Services ordered through your account that are offered for sale through our Sites or Services. If we do not receive payment via your payment method, you agree to pay all amounts due hereunder upon our demand and will be solely responsible for any dispute with your payment provider. If the payment method you provide is initially declined for any reason, we reserve the right to charge the payment method (credit card or other accepted mechanism) in installments, at the non-promotional/non-discounted rate that is in place at the time, for the full duration of the subscription that you have selected. You bear sole responsibility for all overdraft fees or other penalties that may be assessed by your payment provider. You are responsible for any use of your credit card or other payment instrument (e.g. PayPal).
1.9.2 Subscription Renewal
1.9.3 App Store Subscriptions
Subscriptions purchased inside the Conscious Content Media app—not on Conscious Content Media’s website—are managed directly by the applicable App Store. You should consult with the appropriate App Store to determine if the price charged includes all applicable taxes and currency exchange settlements. You are solely responsible for paying such taxes or other charges. Conscious Content Media relies on the App Store to collect subscription fees, manage the subscription, and to report on the status of subscription accounts that have been purchased from within the app. Conscious Content Media does not have the ability to manage any aspect of an App Store subscription on your behalf, including, but not limited to, initiating, canceling, or refunding subscriptions.
1.9.4 Subscription Cancellations
When you cancel a subscription, you cancel only future charges associated with your Subscription. You may initiate your cancellation at any time, but the cancellation will become effective at the end of your current subscription period. In order to avoid future charges, you must cancel your subscription at least 24 hours prior to the end of your current subscription period. You may cancel your subscription by visiting our website at learnwithhomer.com. If you are not already logged in, click or tap the blue "Log In" button, and enter the email address and password associated with your HOMER membership. Under "Membership", tap "cancel membership" or, for subscriptions purchased through a third party App Store or platform, through that third party. After canceling a subscription, you will continue to have access to Premium Services for the interval of time that has already been prepaid. Conscious Content Media does not provide full or partial refunds for prepaid subscription intervals, regardless of duration. Conscious Content Media does not accept returns of Products purchased under a subscription plan.
1.9.5 No Refunds
EXCEPT AS OTHERWISE STATED HEREIN OR REQUIRED BY APPLICABLE LAW, YOUR SUBSCRIPTION FEE IS NONREFUNDABLE and if you cancel your subscription, you will not receive any refund and you will continue to have access to the Premium Services. We reserve the right to issue refunds, credits, or discounts at our sole discretion. If we issue a refund, credit, or discount, we are under no obligation to issue the same or similar refund in the future
1.9.6 Free Trials and Promotional Rates
We may offer promotional trial subscriptions to obtain a Membership on a trial basis or access Services for free or at promotional rate, as well as referral discounts or similar free access to Member benefits when you refer a new user(s).
If your subscription includes a free trial, you will not be charged the applicable fee during your free trial. To obtain the free trial, you will be required to provide a credit card or other payment method in order to ensure uninterrupted access and continued use after the expiration of the free trial. Upon completion of your free trial, your subscription will automatically convert into a paid subscription and your payment method will be charged the applicable fee unless you have cancelled your subscription. You may cancel your subscription during your free trial to avoid being charged as described above.
If your subscription includes a promotional rate, you will be charged the promotional rate for the relevant number of billing periods and upon completion of that period, your subscription will continue to automatically renew at the full rate.
You may only be permitted to use one free trial or discounted price offer. If your subscription is ever cancelled or terminated for any reason, and you purchase an additional subscription, you may not be eligible for a free trial or to take advantage of another discounted price offer.
1.9.8 Changes to the Subscription
We may change the subscription terms or Subscription Fees at any time on a going forward basis in our discretion. If the pricing for your subscription increases, we will notify you, and provide you an opportunity to change your subscription before applying those changes to your account or charging you in connection with an automatic renewal. We may choose in our sole discretion to add, modify, or remove benefits and features from a subscription. Your continued use of the Service after the changes become effective will constitute your acceptance of the changes. If you do not wish to continue subscribing with the new fees or features, you may cancel your subscription. If you accept the new subscription, its terms and conditions will apply for that renewal and all renewals going forward
1.9.9 Lifetime Membership
A Lifetime Membership allows you to access HOMER Learn & Grow for up to 4 child profiles until cancelled and for as long as the service is available and supported by us. The lifetime membership applies only to HOMER Learn & Grow and does not extend to any future services that may be developed or other components of the Services. We reserve the right to revise the terms or make changes to HOMER Learn & Grow and the lifetime membership. If your membership or account is cancelled or terminated for any reason, you will lose your lifetime membership, although you may be able to re-subscribe at the then-current rate for a specified period of time. You may not assign, transfer, or resell your lifetime membership to any other person or entity. We make no warranties or representations as to the expected lifetime of HOMER Learn & Grow, and in purchasing a lifetime membership, you acknowledge and agree that HOMER Learn & Grow could change or terminate in the future.
1.10 License and Use Limitations
You are granted the revocable, non-transferable right and license to use the Services, including Conscious Content Media educational content, Products, and games, for your private, non-commercial use. Any use of our Services in violation of the License Limitations defined in this Section is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1.6, and may subject you to liability for violations of law. Any attempt by you to disrupt or interfere with the Services including undermining or manipulating the legitimate operation of any Conscious Content Media content is a violation of Conscious Content Media policy and may be a violation of criminal and civil laws.
You agree that you will not, under any circumstances (together, “License Limitations”):
- - Access the Services without permission of a parent or legal guardian, if you are under the age of 13; to the extent applicable, you shall not create an account for the Services if you under the age of 18;
- - Fail to monitor your account to restrict use by minors. You accept full responsibility for unauthorized use of the Services, including by minors, in connection with your account;
- - Have more than one account at any given time, or create an account using a false identity or information, or on behalf of someone other than yourself;
- - Have an account or use any of the Services if you have previously been removed by Conscious Content Media or previously been banned from accessing any of our Services;
- - Create an account or use any of the Services if you are a convicted sex offender;
- - Use the Services, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
- - Post any content or information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive or harasses, abuses, or threatens another person or is false or misleading;
- - Make available through the Services any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person
- - Post or do anything that could disable, overburden, or impair the proper working of the Services, including make available any material that contains any virus, malware, software lock, worm, trojan horse, trap door, or similar material.
- - Without Conscious Content Media’s express written consent, use the Services or any part thereof for any commercial purpose, such as benchmarking;
- - Use your account to advertise, solicit, or transmit commercial advertisements or unauthorized communications through the Services, including junk mail, chain letters, spam, repetitive messages and any materials that promote malware, spyware and downloadable material;
- - Except where permitted by law or relevant open source licenses, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Services, or to obtain any information from the Services using any method not expressly permitted by Conscious Content Media, such as scraping, framing, or copying; or
1.11. Suspension and Termination of Account and Services
Termination of your account can include disabling your access to the Services or any part thereof including any content you submitted. You may also lose access to Products associated with your account.
You may cancel any account registered to you at any time by following the instructions here.
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in an account, and you further acknowledge and agree that all rights in and to an account are and shall forever be owned by and inure to the benefit of Conscious Content Media.
Generally, accounts created with Conscious Content Media will be considered active until we receive an Account Owner request to deactivate or delete them; we also reserve the right to terminate any account that has not been accessed for 180 days.
1.12.2 THIRD PARTY HYPERLINKS AND THIRD PARTY CONTENT
The Services will often have hyperlinks to third party sites and may display content and other information from third party sites (“Third Party Content”). Conscious Content Media does not verify, endorse, or take responsibility for the accuracy, currency, completeness or quality of Third Party Content. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms. Furthermore, Conscious Content Media is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such sites. Conscious Content Media and its subsidiaries and affiliates are not responsible for any errors or omissions or for the results obtained from the use of such information contained in Third Party Content.
The appearance of external hyperlinks and/or postcards generated by third parties does not constitute endorsement by Conscious Content Media, its subsidiaries and affiliates of the opinions or views expressed by these third party websites.
Finally, Conscious Content Media will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third party hyperlinked sites.
2. USER CONTENT
2.1. Content Screening
Please be advised that Postings do not necessarily reflect the views of Conscious Content Media. In no event shall Conscious Content Media assume or have any responsibility or liability for any Postings or for any claims, damages or losses resulting from their use and/or appearance on this Site. You hereby represent and warrant that you have all necessary rights in and to all Postings you provide and all information they contain and that such Postings shall not infringe any proprietary or other rights of third parties or contain any libelous, tortious, or otherwise unlawful information.
Without limiting the foregoing, Conscious Content Media will have the right to use and change the Postings in any manner that Conscious Content Media may determine.
Additionally, Conscious Content Media may or may not monitor and sweep Postings periodically in its sole discretion. Conscious Content Media does not allow Postings which contain:
- - profanity or obscenities;
- - personal attacks on other individuals;
- - photographs, drawings, video, music, or any other content which infringes the intellectual property rights of any third party;
- - slanderous, defamatory, obscene, pornographic, threatening and harassing comments; and/or other information that Conscious Content Media deems in its sole discretion to be inappropriate for its Site.
2.3 Content Provided for Promotions or Contests
3. COPYRIGHT NOTICES/COMPLAINTS
It is Conscious Content Media’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”).
In accordance with the Digital Millennium Copyright Act of 1998, Conscious Content Media will respond promptly to claims of copyright infringement that are reported to our Designated Copyright Agent in this form:
DMCA Notice of Alleged Infringement ("Notice")
(1) Identify the copyrighted work that you claim has been infringed, or provide a comprehensive list of the copyrighted works that you claim have been infringed.
(2) Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including, if applicable, the URL of the link or a specific description of where the material may be found.
(3) Provide your mailing address, telephone number, and, if available, email address.
(4) Include both of the following statements in the body of the Notice:
- (a) “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)."
- (b) "I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
(5) Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to Conscious Content Media’s Designated Copyright Agent at email@example.com or 121 Varick Street, Floor 3, NY, NY 10013.
Conscious Content Media reserves the right to terminate without notice any user’s access to any of the Services if that user is determined by Conscious Content Media, in its sole discretion, to be a "repeat infringer." In addition, Conscious Content Media accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
4. UPDATES TO THE SERVICE
Conscious Content Media may require that you accept updates to the Service and to Conscious Content Media’s content you have installed on your computer or mobile device. You acknowledge and agree that Conscious Content Media may update the Service with or without notifying you.
5. DISCLAIMERS AND LIMITATIONS OF LIABILITY
5.1. DISCLAIMER OF WARRANTIES
THE SITES AND ALL MATERIALS CONTAINED ON IT ARE DISTRIBUTED AND TRANSMITTED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Conscious Content Media is not responsible or liable for functions or features that are interrupted, unsecure, or contain errors. We do not warrant that defects will be corrected. We are not responsible or liable for any infections or contamination of your system, or delays, inaccuracies, errors, or omissions arising out of your use of these Sites or with respect to the information and material contained on these Sites. The entire risk as to the quality, accuracy, adequacy, completeness, correctness and validity of any material rests with you. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Conscious Content Media, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, REPRESENTATIVES, AND THIRD PARTY PROVIDERS TO THE SITE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR SIMILAR DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), THAT MAY RESULT FROM THE USE OF OR IN CONNECT WITH, OR THE INABILITY TO USE, THE MATERIALS, INFORMATION, OR ANY LINK PROVIDED ON THE SERVICES. Notwithstanding the foregoing, in no event shall Conscious Content Media’s liability to you for any and all claims, damages, losses, and causes of action (whether in contract, tort or otherwise) exceed the amount paid by you, if any, for accessing the Sites.
If you are a California resident, you hereby waive California Civil Code §1542, which says: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. " This release includes the criminal acts of others. If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
5.2. EXCLUSIONS AND LIMITATIONS
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as above in Section 5.1. Accordingly, some of the above limitations may not apply to you. If you are a New Jersey resident, or a resident of another state that permits the exclusion of these warranties and liabilities, then the limitations in Section 5.1 specifically do apply to you.
You agree that the provisions in this paragraph will survive any termination of your account(s) or of the Service.
6. DISPUTE RESOLUTION
You and Conscious Content Media agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or the Service (“Claim”) in accordance with Subsection 6.2 or as Conscious Content Media and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
6.2.1 Application. You and Conscious Content Media agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 6.2 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to product availability, purchases, and advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
6.2.2. Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. In the event of a possible claim, a party must first send to the other, by certified mail, a written Notice of Dispute ("Notice") describing (a) the nature and basis of the claim or dispute; and (b) the specific relief sought (“Demand”). The Notice to Conscious Content Media should be addressed to: Dispute Resolution Agent, Conscious Content Media Inc, 121 Varick St., Floor 3, New York, NY 10013 USA ("Notice Address"). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Conscious Content Media , and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. Failure to engage in this process could result in the award of fees against you in arbitration.
6.2.3 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in section __ below) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties' relationship with each other, and/or your use of the Services or any services provided by Conscious Content Media shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class or representative actions. If your Claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephone, or by an in-person hearing as established by the rules of the arbitration administrator. The amount of any settlement offer made by Conscious Content Media or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Conscious Content Media is entitled. Any failure or other delay by either party in enforcing this Section at any time, or in connection with any particular claims, will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other claims. Decisions rendered in arbitration proceedings will be final and binding on the parties. There shall be no appeal from arbitration decisions other than for arbitrator bias, fraud or misconduct and any award granted in arbitration will be enforceable by any court having jurisdiction as provided by the FAA and/or other applicable law.
6.2.4 Arbitrator’s Powers. Except as explicitly set forth in this Section 6.2, the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. The arbitrator's award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
The rules governing the arbitration may be accessed at www.jamsadr.org or by calling JAMS at (800) 352-5267. If you commence arbitration in accordance with these Terms, you will be required to pay $250 to initiate the arbitration. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the arbitrator may require Conscious Content Media to pay the additional cost. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. If the arbitrator finds the arbitration to be non-frivolous, Conscious Content Media will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. For claims above $75,000, fees and costs will be determined in accordance with applicable JAMS rules. The arbitration rules permit you to recover attorney’s fees in certain cases. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the rules of the arbitration administrator. In such case, you agree to reimburse us for all monies previously disbursed by us that are otherwise your obligation to pay under the rules of the arbitration administrator.
Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based. The arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions in accordance with JAMS Rule 24 for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11).
The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS’s Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Section 14 while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
6.2.5 Location. If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you, unless you and we both agree to another location or telephonic arbitration. You and Conscious Content Media agree to submit to the personal jurisdiction of any federal or state court in New York, New York in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
6.2.6 Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND CONSCIOUS CONTENT MEDIA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If there is a final judicial determination that applicable law precludes enforcement of this paragraph’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
6.2.7 Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction. Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court in your state and county of residence. Seeking such relief shall not waive a party’s right to arbitration under this agreement.
6.2.8 30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to [INSERT] with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of (a) [Date you post these updated terms]; or (b) your first date that you used the Services that contained any versions of the Terms that included this version of the mandatory arbitration and class action waiver, whichever is later. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, Conscious Content Media also will not be bound by them.
6.2.9 Changes to This Section. Conscious Content Media will provide thirty (30) days' notice of any changes affecting the substance to this section by posting on the Services. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you by email. If you continue to use the site after the 30th day, you agree that any unfiled claims of which Conscious Content Media does not have actual notice are subject to the revised clause. You may reject any such change by sending us written notice within 30 days of the change. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Section.
Any failure or other delay by either party in enforcing this Section at any time, or in connection with any particular Claims, will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims. Decisions rendered in arbitration proceedings will be final and binding on the parties. There shall be no appeal from arbitration decisions other than for arbitrator bias, fraud or misconduct and any award granted in arbitration will be enforceable by any court having jurisdiction as provided by the FAA and/or other applicable law.
8. GENERAL PROVISIONS
8.1 Force Majeure.
Under no circumstances shall Conscious Content Media or its subprocessors be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
8.3. Entire Agreement
Any notices that you provide without compliance with this Section on Notices shall have no legal effect.
You consent to receive notifications from Conscious Content Media electronically and agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing or be delivered in a particular manner. You agree that you have the ability to store such electronic communications such that they remain accessible to it in an unchanged form. You agree to keep your contact information current.
8.5 Statute of Limitations.
Except for residents of New Jersey, you agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services and/or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
8.6 No Waiver.
No waiver of any provision of these Terms will be binding unless in writing, no waiver of any provisions of these Terms will be deemed a further or continuing waiver of such provision or any other provision, and the failure of Conscious Content Media to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. If an arbitrator or a court of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.
8.7 iOS Terms
You acknowledge that Apple is not responsible for addressing any claims you have or any claims of any third party relating to the app or your possession and use of the app, including, but not limited to (i) product warranty or liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; or (iv) claims that the app infringes a third party’s intellectual property rights.
9. Contact Us