Date of Last Revision: May 15, 2018
Noir Creative Pty Ltd ABN 78 618 924 815 (collectively, “Noir,” “we,” “us,” “our”) provides an online booking, payment and matching marketplace that connects photographers and users requiring on-demand photography and videography services (collectively, the “Services”) to you through its website located at www.noircreative.com.au (the “Site”) and through its mobile applications and related services (collectively, such services, including any new features and applications, and the Site, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST NOIR ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
THE SITE INCLUDES AN ONLINE MARKETPLACE THROUGH WHICH PHOTOGRAPHERS (DEFINED BELOW) MAY OFFER PHOTOGRAPHY AND VIDEOGRAPHY SERVICES (DEFINED BELOW) AND SUBJECTS (DEFINED BELOW) MAY BOOK SUCH PHOTOGRAPHY AND VIDEOGRAPHY SERVICES. YOU ACKNOWLEDGE AND AGREE THAT: (1) NOIR IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN PHOTOGRAPHERS AND SUBJECTS, (2) NOIR ONLY PROVIDES MATCHING AND PAYMENT PROCESSING SERVICES, (3) SUBJECTS CONTRACT FOR PHOTOGRAPHY AND VIDEOGRAPHY SERVICES DIRECTLY WITH PHOTOGRAPHERS (4) NOIR IS NOT A BROKER, AGENT (EXCEPT AS EXPRESSLY SET FORTH BELOW) OR INSURER, AND (5) NOIR HAS NO CONTROL OVER THE CONDUCT OF PHOTOGRAPHERS, SUBJECTS, OR ANY OTHER USERS OF THE SITE OR PHOTOGRAPHY AND VIDEOGRAPHY SERVICES, AND NOIR DISCLAIMS ALL LIABILITY IN THIS REGARD. DIFFERENT SECTIONS OF THE SITE AND TERMS OF SERVICE AFFECT PHOTOGRAPHERS AND SUBJECTS DIFFERENTLY, SO PLEASE BE SURE TO READ THESE TERMS CAREFULLY.
“User” “you” or “your” means a person, organization or entity using the Services, including Subjects and Photographers.
“Subject” means a person who completes Noir’s account registration process to book a Photographer or Videographer.
“Photographer or Videographer” means a photographer or videographer who can provide the photography or videography services sought and who is accepted by Noir on the Site.
“Photography and Videography Services” means photography and Videography-related services provided by Photographers and Videographers.
Access and Use of the Service
As stated above, Noir’s Services make available a marketplace with related technology for Subjects and Photographers to arrange for the matching of a Subject with a Photographer and booking of Photography and videography Services. Noir itself does not provide any photography and videography-related services. Noir’s responsibilities are limited to: (i) facilitating the availability of the Site, and (ii) serving as the limited agent of each Photographer for the purpose of accepting payments from a Subject on behalf of the Photographer. There are risks that you assume when dealing with other Users (including those who may be acting under false pretenses). You agree that all of these risks are borne by you, and not Noir. Noir does not control the behavior of Users or the quality of the Photography and videography Services. As a result, Noir does not guarantee or endorse the authenticity, quality, safety, or legality of the Photography and videography Services.
Your Registration Obligations
User Account, Password and Security
You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Noir of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Noir will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Service
Noir reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Noir will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage
You acknowledge that Company may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Company’s servers on your behalf. You agree that Company has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Company reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Noir and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Noir account information to ensure that your messages are not sent to the person that acquires your old number.
Noir endeavors to match a Subject with the most suitable Photographer(s) based on information provided by the Subject. A number of Photographers may be presented as options to a Subject as part of the matching process, in which case it is the Subject’s responsibility to make the final choice as to which Photographer provides Photography and videography Services. A Subject will be able to book the Photography and videography Services though the Site (“Booking”). However, even when a Photographer is matched with or chosen by a Subject for a Booking, Noir reserves the right to change which Photographer actually provides the Photography and videography Services for a particular Booking, in its sole discretion. Noir will endeavor to notify the Subject of any such changes in advance.
As Photographer, you acknowledge and agree that a substantial portion of the compensation Noir receives for making the Site available to you is collected through the Noir Fee described in Payment Terms. Noir only receives this Fee when a Subject and a Photographer pay and receive payment through the Site. Therefore, for 12 months from the time you identify or are identified by any party through the Site (the “Non-Circumvention Period”), you must use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party. You may opt-out of this obligation with respect to each Subject-Photographer relationship only if Subject or prospective Subject or Photographer pays Noir for each such relationship by paying an “Opt-Out Fee” of $5,000 AUD.
To pay the Opt-Out Fee, you must request instructions by sending an email message to firstname.lastname@example.org.
Except if you pay the Opt-Out Fee, you agree not to circumvent the Payment Terms offered by the Site.
By way of illustration and not in limitation of the foregoing, you must not:
You agree to notify Noir immediately if another User improperly contacts you or suggests making or receiving payments outside of the Site.
Certain Photographer Obligations
As a Photographer, you must provide Noir with any information requested in order for Noir to match you to a Subject, such as information on your background, experience and skills, sample photos taken by you, contact details and your headshot. You must also provide Noir with up to date, complete and accurate information regarding the days and times you are available to complete Bookings and must ensure that this information remains accurate and current at all times. Once you are matched with a Subject you have the right to turn down the job, but Noir has sole discretion to determine if such refusal will harm your ability to be matched in the future. Noir may also request that you submit a portfolio of previous works. Noir has sole discretion as to which photographers are accepted into the marketplace and we reserve the right to reject any potential Photographer and remove any Photographer from the marketplace for any reason. Noir may, but is not required to, conduct background checks on Photographers.
EACH PHOTOGRAPHER IS SOLELY RESPONSIBLE FOR OBTAINING ALL PERMITS, LICENSES AND OTHER PERMISSIONS REQUIRED TO OFFER OR PROVIDE ANY PHOTOGRAPHY AND VIDEOGRAPHY SERVICES OR OTHER PHOTOGRAPHER-PROVIDED SERVICES AND NOIR ASSUMES NO RESPONSIBILITY FOR A PHOTOGRAPHER’S FAILURE TO OBTAIN SUCH PERMITS, LICENSES OR PERMISSIONS OR OTHERWISE COMPLY WITH ANY APPLICABLE LAWS, RULES OR REGULATIONS.
You understand and agree that Noir is neither an insurer nor a contracting agent or employer for you as a Photographer. If a Subject purchases any of your Photography and videography Services, any agreement you enter into with such Subject is between you and the Subject and Noir is not a party thereto. Notwithstanding the foregoing, Noir serves as your limited authorized agent for the purpose of accepting payments from Subjects on your behalf and Noir is responsible for transmitting your portion such payments to you. You acknowledge and agree that, as a Photographer, you are responsible for your own acts and omissions. Each Photographer understands the fact that Noir does not offer any medical coverage for bodily harm or injury that may result from providing the Photography and videography Services. Noir will not reimburse for any medical bills, transportation or loss of wages as a result of the injury or for any accommodations.
Each Subject agrees to pay all applicable fees for Photography and videography Services and fees for any digital downloads or prints purchased either through a package or after the completion of the Photography and videography Services (“Purchased Prints”) as set forth on the Site (collectively, “Photographer Fees”). All Photographer Fees are payable in the currency specified on the Site at the time of Booking. If a Subject requests amended Photography and videography Services, including but not limited to changes to the time, location or type of Photography and videography Services provided (“Variation”), a change fee may be charged. All change fees are payable before any Variations will be accepted and performed.
You shall be responsible for all taxes associated with the Services.
Except as otherwise expressly set forth herein or as expressly approved by Noir in writing in its sole discretion, all payments made are final and non-refundable and the Subject shall not have the right to cancel its purchase for any reason. If you make a payment by credit card or other payment instrument, you represent and warrant to Company that such information is true and that you are authorized to use such payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Company the amount that is specified on the Site for Photographer Fees and in accordance with the terms of such fees and purchases and this Terms of Service.
Noir will facilitate bi-monthly payment to a Photographer’s nominated bank account the total Photographer Fees accrued for the Photography and videography Services provided to a Subject by such Photographer during the preceding payment period, less the fee payable to Noir for referring the Subject(s) to such Photographer as set forth in terms provided to Photographers at the time of their onboarding (“Noir Fee”). Noir has sole discretion to act on behalf of the Subject, and to not pay Photographer Fees, if the Subject reports that the Photography and videography Services were not provided or adequately completed. This may include but is not limited to circumstances where a Photographer did not arrive for a Booking or photos were of insufficient quality for use. Noir will independently review such cases, seeking input from the Subject and/or the Photographer in its sole discretion, and may decide at its sole discretion to issue a refund to the Subject.
Limited Payment Collections Agent
Each Photographer appoints Noir as the Photographer’s limited payment collection agent solely for the purpose of accepting the Photographer Fees from the Subject. Each User agrees that payment of Photographer Fees in respect of a Photographer by a Subject to Noir, as that Photographer’s limited payment collection agent, shall be considered the same as a payment made directly by that Subject to the relevant Photographer and the Photographer will provide the relevant Photographer Services to the Subject, as outlined on the Site, as if the Photographer had received payment directly. Noir, as limited payment collection agent for the Photographer, agrees to facilitate the payment of any Photographer Fees for Photography and videography Services provided, on a bimonthly basis unless otherwise agreed between Noir and the Photographer. In the event that Noir does not remit such amounts, the Photographer will have recourse only against Noir.
Conditions of Use
You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by Noir. Noir reserves the right to investigate and take appropriate legal action against anyone who, in Noir’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
Special Notice for International Use; Export Controls
Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
Australian Consumer Guarantees
This Section provides additional terms for our Users located in Australia. Consumer legislation in Australia including the Australian Consumer Law (“ACL”) in the Competition and Consumer Act 2010 (Cth) provides consumers with guarantees that cannot be excluded, restricted or modified. Similar consumer protection laws and regulations in other countries may provide consumers with similar guarantees.
If the User is a consumer as defined in the ACL, the following notice applies to the User from Noir: “We guarantee that the Services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the Services for or for a result which you have told us you wish the Services achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our Services is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.”
Apple-Enabled Software Applications
Noir offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
Noir and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
Intellectual Property Rights
Service Content, Software and Trademarks
You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Noir, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Noir from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of Noir, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Noir.
The Noir name and logos are trademarks and service marks of Noir (collectively the “Noir Trademarks”). Other Noir product and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Noir. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Noir Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Noir Trademarks will inure to our exclusive benefit.
Photography and videography Services
For Australian Subjects, you acknowledge that subsections 35(5) and 213(5) of the Copyright Act 1968 (Cth) are excluded and you do not have copyright in any images or photos created for a Booking.
Subjects hereby grant Noir a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to use, copy, display and distribute the Photograph Content and associated Photograph IP for marketing and advertising purposes. Noir will inform Subjects if it intends to use photos in this way, to provide an opportunity for any reasonable objections to be taken into account. Photographers may request that Noir provide a limited intellectual property license for the purpose of using photos in the Photographer’s portfolio of work or for other purposes by seeking prior written consent from both Noir and the relevant Subject.
Third Party Material
Under no circumstances will Noir be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Noir does not pre-screen content, but that Noir and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Noir and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Noir, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through the Service
With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Noir and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
Subjects may rate a Photographer and their Photography and videography Services (“Photographer Rating”), and Photographers may rate a Subject (“Subject Rating”),in each case using the multidimensional rating system provided on the Site (collectively, “Rating”). Subjects may also provide written feedback to Noir regarding Photographers and their Photography and videography Services purchased by such Subject (“Review”). You may only leave a Rating or submit a Review once the Photography and videography Services have been provided for the relevant Booking. Noir can remove a Rating at any time, in its sole discretion. A Subject must provide true, fair and accurate information in their Review.
You acknowledge and agree that any Rating, Review, questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Noir are non-confidential and Noir will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. Noir’s rights to such Submissions includes, but is not limited to, creating an aggregate rating from the Ratings it receives and showing Users such aggregated ratings.
You acknowledge and agree that Noir may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Noir, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Noir respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Noir of your infringement claim in accordance with the procedure set forth below.
Noir will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Noir’s Copyright Agent at copyright@Noir.co (Subject line: “DMCA Takedown Request”). You may also contact us by mail or facsimile at: 101 California Street, Suite 2710, San Francsisco, CA, 94111, United States.
To be effective, the notification must be in writing and contain the following information:
If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
If a counter-notice is received by the Copyright Agent, Noir will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy
In accordance with the DMCA and other applicable law, Noir has adopted a policy of terminating, in appropriate circumstances and at Noir’s sole discretion, users who are deemed to be repeat infringers. Noir may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Websites
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Noir has no control over such sites and resources and Noir is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Noir will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Noir is not liable for any loss or claim that you may have against any such third party.
Social Networking Services
In addition, Noir is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Noir is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Noir enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
Indemnity and Release
You agree to release, indemnify and hold Noir and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NOIR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
NOIR MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NOIR WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF NOIR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL NOIR’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID NOIR IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution By Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Noir, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Noir are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
YOU AND NOIR AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND NOIR AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
To the extent a court or the arbitrator determines that this class action waiver is invalid, for any reason, it shall not be severable from this Terms and the class or collective claims will be considered excluded claims that must be litigated in a civil court of competent jurisdiction Notwithstanding any other clause contained in this arbitration provision, any claim that all or part of the class action waiver is invalid, unenforceable void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The class action waiver shall be severable when a dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.
Noir is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at support@Noir.co If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Noir should be sent to: 101 California Street, Suite 2710, San Francsisco, CA, 94111, United States (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Noir and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Noir may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Noir or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Noir is entitled.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Noir and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Noir agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Noir will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Noir will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Noir will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
Notwithstanding any provision in this Terms of Service to the contrary, Noir agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Noir written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that Noir, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Noir believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Noir may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Noir may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Noir will not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service and Noir will have no liability or responsibility with respect thereto. Noir reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and Noir and govern your use of the Service, superseding any prior agreements between you and Noir with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Noir agree to submit to the personal and exclusive jurisdiction of the state and federal courts. The failure of Noir to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Noir, but Noir may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.