Obscura Privacy Policy
Last Updated: 2024-11-14
Overview
Obscura was built to avoid collection of your personal data – and in particular, your internet traffic. By design, Obscura cannot access the contents of your internet traffic through us because they are always end-to-end encrypted to a blind relay.
This Privacy Policy describes how Sovereign Engineering Inc., d/b/a Obscura (“Obscura”, “we”, “us” or “our”) processes, uses and discloses information from our websites (obscura.net and related subdomains), through our VPN service (collectively, the “Services”). We also explain your rights and choices with respect to your information.
Please read this Privacy Policy, which is part of our Terms of Use, carefully before using our Services to understand how we handle your information. If you do not agree to this Privacy Policy, please do not use the Services.
1. Information we process
By design, Obscura cannot access the contents of your internet traffic when you use our VPN. We only process what little information is necessary to best offer you our service.
IP Addresses: We do not persist, log, or otherwise store your IP address when you use our VPN.
Payment Information: Depending on your choice of payment method, payment processors may require additional information. For instance, for credit card subscriptions, Stripe needs to collect your payment card information and an email to provide subscription updates. This information is not retained by Obscura and we strive to offer more private options where possible (e.g. Bitcoin Lightning or one-time Credit Card payments).
Our Website: We use a privacy-friendly analytics provider – Plausible – on our website to improve our service. Please see their website for more information about how their product works. If you would like to access the website through a private browser, we also serve our website over a Tor v3 Onion Service here: ngmmbxlzfpptluh4tbdt57prk3zxmq4ztew7l2whmg7hkqaof2nzf7id.onion.
Voluntary Information: We may collect any other information you voluntarily send us, such as inquiries about our products and services. For instance, you may provide an email address in order to join Obscura’s waitlist (in which case the email address will be deleted after the product launches).
2. How we use and disclose information
We use the limited information we process and disclose it to our service providers to provide and manage the Services, to send you updates your eligibility to register if you have signed up for our waitlist, to respond to your inquiries, and provide technical support and assistance, and for debugging, repairs and troubleshooting.
We may also use and disclose this information to protect against harm to the rights, property, or safety of Obscura, our users, or the public, as required or permitted by law.
We may use or disclose your information for other purposes at your direction/with your consent.
3. Miscellaneous
Links to external content. Our Services may link or direct you to other websites, services or external content provided by third parties. We do not exercise any control over these third-party websites or services. We are not responsible for the privacy practices of such third-party websites or services. We recommend that you read the privacy policy for any third-party website that you visit or service that you use.
Children’s data. We do not knowingly solicit or collect information from anyone under the age of 13 without appropriate parental consent.
Your choices. You may request access to, or correction or deletion of, information that we maintain about you by contacting us at the email address below. We will consider all requests we receive and reply in accordance with any applicable laws. We reserve the right not to agree to any such request if we deem it burdensome or otherwise injurious or inappropriate, or if such data will interfere with our ability to meet our own legal obligations, except to the extent required by applicable law.
If you would like to be removed from our waitlist or mailing list, please email us at lists@obscura.net.
4. Changes to this Policy
This Policy is effective as of the “Last Updated” date posted at the top of this page. We may change this Policy from time to time and will post any changes on this page as soon as they go into effect, and/or provide additional notice as required by applicable law. By accessing the Services after we make any such changes, you are deemed to have accepted such changes. Please refer back to this Privacy Policy on a regular basis.
5. Contact Us
If you have any questions or comments about this Privacy Policy, please contact us at legal@obscura.net.
Obscura VPN Terms of Service
Last Updated: 2024-11-14
Obscura provides virtual private network services (the “VPN Services”), together with any mobile or desktop application(s) (including any releases, updates, or enhancements) and associated documentation (collectively, the “Software”), extensions, applications, information, other content, and any online and offline services related thereto, made available to you by Obscura (collectively, the “Services”).
These Terms of Service (“Terms”) are a binding legal agreement between you and Sovereign Engineering Inc. d/b/a Obscura (“Obscura”, “we”, “us” or “our”) that set forth the terms and conditions applicable to your access to and use of the Services. BY USING THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS INCLUDING THE MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRAIL WAIVER. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OR ANY PROVISIONS HEREOF, PLEASE DO NOT ACCESS AND USE OUR SERVICES. The terms “user”, “you”, and “your” refer to the individual that uses the Services provided by us.
Except for Section 11 which provides for binding arbitration and waiver of class action rights, we reserve the right to modify these Terms at any time in our sole discretion. Any such modification will be effective upon the posting of the modified Terms, so we encourage you to check back here from time to time for any such modifications.
ACCESS TO & USE OF THE SERVICES
License. Subject to the terms and conditions herein, we grant you a limited, revocable, non-sublicensable, non-exclusive, non-transferable, non-assignable license to download and install the Software and access and use the Services solely for your personal, non-commercial use.
User Account. To use the Services, you will need to register for an account (“User Account”). You are responsible for ensuring that all required registration information you submit is accurate current and complete. You are solely responsible for maintaining the confidentiality and security of your User Account login information and you agree to notify us immediately of any unauthorized use of your User Account.
Eligibility. The Services are intended for users who are 18 years of age or older and reside in a jurisdiction where the Services are available. You may not access, use, or enroll in the Services if you are outside of those jurisdictions or are barred from receiving the Services under these Terms or by applicable law.
User Responsibilities. You are solely responsible for (i) all actions taken within your User Account; (ii) timely accepting, installing and using any version updates, bug fixes, patches, error corrections, and other similar software or content updates to the Software and/or related documentation; (iii) and acquiring, maintaining and securing your own hardware, software, networks and computer systems, which are not included in the Services.
Prohibited Uses. In using the Services, you shall not, and shall not assist or enable any third party to: (i) use the Services for illegal, threatening, fraudulent or unauthorized purposes, violating general ethical or moral norms or good customs, or harassing or abusing another person or entity, (ii) use the Services for any commercial use, (iii) infringe the intellectual property rights, or invade the privacy or other proprietary rights, of any third party, (iv) violate any applicable laws or regulations or engage in any activity that could cause us to violate any applicable laws or regulations, (v) remove or modify any copyright, trademark, ,or other proprietary rights notice in the Software and/or the Services, (vi) attempt to access, probe, interfere with, or connect to the Services and/or any computer without authorization (i.e., any form of “hacking”), or use any robot, spider, scraper, or other automated means to access the Software and/or Services for any purpose without our prior written permission, (vii) decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Software, (viii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures we may use to prevent or restrict access to the Services or use of the Services, (ix) build a similar or competitive service, or (x) to transmit any viruses, malicious code, files, instructions or other content that disrupt, damage or interfere with computers or related systems.
PAYMENT TERMS.
Purchase Plans & Pricing. We may offer one or more purchase plans, including one-time purchases and recurring subscriptions (each, a “Plan”). The price of the Plan will be made clear during the ordering process. You agree to pay the price stated at the time of your order, as well as any applicable taxes. Applicable taxes may vary depending on the jurisdiction. All prices are in United States Dollars, unless stated otherwise.
Subscriptions. We may choose in our sole discretion to add, modify, or remove benefits and features from a subscription. Your continued use of the Services after the changes become effective will constitute your acceptance of the changes. If you do not wish to continue subscribing with the modified features, you may cancel your subscription.
Fees. You agree to pay Obscura the fees and rates associated with your Plan (“Fees”). We accept payment for Fees in the form of credit card or Bitcoin, and by agreeing to these Terms, you agree to be bound by the terms and policies of the applicable payment processor or payment protocol. You authorize Obscura to charge you through the payment method that you provide to us. All Fees are payable in accordance with payment terms in effect at the time when the Fees become payable. If your payment method cannot be processed for some reason, we may, at our discretion, terminate, disable, cancel or suspend access to your subscription without further notice.
Fee Changes. We may modify the Fees payable from time to time. The modified Fees will take effect at the start of the next billing period if you are on a recurring subscription. We will provide advance notice of these changes, and you will have the opportunity to change or cancel your subscription prior to incurring the new charges. However, we may not be able to notify you in advance of changes in applicable taxes.
Auto-Renewal & Recurring Billing. If you purchase a recurring subscription to the Services, you are subscribing to an automatically-renewing subscription requiring recurring payments at the stated frequency until you cancel in a manner set forth below. You authorize us to charge your credit card on a recurring basis for the applicable Fees, any and all taxes or possible transaction fees. Your credit card will automatically be charged the applicable Fees on the applicable renewal processing date, unless you cancel, or your User Account is terminated, before that date.
Cancellation. You may cancel your automatically-renewing subscription at any time, before the date your subscription renewal is processed through the web-based settings provided through your User Account. When you cancel a subscription, you cancel only future charges associated with your subscription and you will continue to receive access to the Services until the end of the then-current subscription period (unless we provide you with a refund or otherwise allow you to use the unused portion towards another service or subscription). You will also forfeit any service or referral credits and unredeemed benefits of the subscription upon cancellation.
No Refunds. EXCEPT AS OTHERWISE STATED HEREIN OR REQUIRED BY APPLICABLE LAW, YOUR PAYMENT IS NONREFUNDABLE, AND WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL-PERIOD SUBSCRIPTION PERIODS OR UNUSED 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 and we may terminate your subscription and access to the services.
FREE TRIALS & PROMOTIONS. We may offer promotional trial subscriptions for free, or at special discounted prices. Such trial or promotional memberships are subject to terms accompanying the promotional offer (including which users are eligible for the promotional subscriptions).
Availability of a free trial is not guaranteed. If your subscription includes a free trial, you will not be charged the applicable Fees during your free trial. Once your free trial period ends, your first payment will be automatically charged to your payment method immediately at the then-current Fees, unless you cancel your subscription (as described in the “Cancellation” section above) prior to the expiration of your free trial period. If you start a free trial and cancel before it ends, you will lose access to the subscription-based features at the end of the free trial period. We reserve the right to terminate any free trial period at any time.
We may also offer, in our sole discretion, promotions subject to terms that will be provided to you in promotional materials or during your enrollment. After your promotion ends unless you cancel your subscription (as described in the “Cancellation” section above) prior to the end of the promotional period, we will begin billing your payment method at the then-current, non-promotional rate and your subscription will continue to automatically renew at the then-applicable rate unless you cancel.
You may only be permitted to use one free trial or discounted price offer and you may be limited in your ability to combine promotions. 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.
INTELLECTUAL PROPERTY. As between you and Obscura, the Software and the Services, including without limitation any logos, patents, trademarks, service marks, copyrights, and all the intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Obscura. Nothing in these Terms shall be interpreted to provide you with any rights in the foregoing, except the limited right to use the Software and Services expressly set forth herein.
TERM & TERMINATION.
Term. These Terms will remain in effect from the date you create a User Account until the earlier of (i) your cancellation of your subscription, or (ii) termination of these Terms by you or us, as provided herein.
Suspension or Termination Due to Violation of Laws or the Terms. We reserve the right, at any time, in our sole discretion, with or without notice, to suspend or terminate your subscription if we reasonably believe you have violated any applicable laws or these Terms.
Survival.Provisions that, by their nature, should survive termination these Terms shall survive termination.
Procedure for Making Claims of Copyright and Trademark Infringement. Obscura may, in appropriate circumstances and at its discretion, disable and/or terminate User Accounts of users who repeatedly infringe the intellectual property of others. Please note that the Services do not provide content hosting or caching services—they do not store content. Thus, Obscura may not be able to remove or disable access to information not stored on our Services. If you believe that your copyright or the copyright of a person on whose behalf you are authorized to act has been infringed, please contact us at legal@obscura.net.
DISLCAIMER OF WARRANTIES. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. OBSCURA, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SERVICES.
The VPN Services coverage, speed, server locations, and quality may vary. The Services may be subject to unavailability for a variety of factors beyond our control or when we test, update, improve, or modify the Services. We are not responsible for data, messages, or pages lost, not delivered, delayed, or misdirected because of interruptions or performance issues with the Services, communications services, or networks. We may impose usage or service limits or block certain kinds of usage at our sole discretion to protect Obscura, our users, or the Services.
PRIVACY. For details about our privacy practices, please refer to our Privacy Policy, which applies to your use of the Services and reflects how we collect, use and disclose personal information in connection with our Services. Our Privacy Policy is incorporated by reference into these Terms.
LIMITATION OF LIABILITY. IN NO EVENT WILL OBSCURA, ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, ADVERTISERS, SUPPLIERS, CONTENT PROVIDERS AND LICENSORS (AND ALL SUCCESORS AND ASSIGNS OF ANY OF THE FOREGOING) (“OBSCURA PARTIES”) BE LIABLE (JOINTLY OR SEVERALLY) TO YOU OR ANY OTHER PERSON AS A RESULT OF YOUR ACCESS TO OR USE OF THE SERVICES FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, LOST REVENUES, OR LOST GOODWILL (COLLECTIVELY, THE “EXCLUDED DAMAGES ”), REGARDLESS OF THE FORM OF THE ACTION, WHETHER THE ALLEGED LIABILITY IS BASED ON NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF THE OBSCURA PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES.
TO THE FULLEST EXTENT PERMITTED BY LAW, OBSCURA’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO OBSCURA FOR USE OF THE SERVICES DURING THE TERM OF THE RELEVANT SUBSCRIPTION FOR THE SERVICES UNDER WHICH THE CLAIM ARISES OR ONE HUNDRED DOLLARS ($100) IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO OBSCURA. THIS LIMITATION OF LIABILITY SHALL APPLY TO THIRD PARTY CLAIMS AS WELL AS CLAIMS BETWEEN THE PARTIES.
INDEMNIFICATION. You agree at your own expense, to indemnify, defend, and hold harmless Obscura and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) incurred in, arising out of or in any way related to: (i) your breach of these Terms; (ii) your (or any other user’s use of your User Account) use or access to the Services; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) your negligence or willful misconduct; or (vii) any other party’s access and use of the Services with your unique username, password or other appropriate security code.
ARBITRATION, CLASS ACTION/JURY TRIAL WAIVER & GOVERNING LAW.
READ THIS SECTION CAREFULLY, AS IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE OR PARTICIPATE IN A LAWSUIT FILED IN COURT.
Informal Dispute Resolution Procedure. For any dispute with Obscura, you agree to first contact us at legal@obscura.netand attempt to resolve the dispute with us informally. This requires first sending a written description of the dispute to the other party. For any dispute you initiate, you agree to send the written description of the dispute along with the email address associated with your User Account, if any, to the following email address: legal@obscura.net. For any dispute that Obscura initiates, we will send our written description of the dispute to the email address associated with your User Account. The written description must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought. If the dispute is not resolved within sixty (60) days after receipt of the written description of the dispute, you and Obscura agree to the further dispute resolution provisions below.
The above informal dispute resolution process is required before you may commence any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process.
Mutual Arbitration Agreement. We each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to your access or use of the Service including without limitation (i) the content available within the Service such as User Content; (ii) these Terms (including its formation, performance, and breach); or (iii) that in any way relate to the provision or use of the Service, your relationship with Obscura, or any other dispute with Obscura, (collectively, “Claims”), shall be resolved exclusively through binding arbitration in accordance with this Section 11 (collectively, the “Arbitration Agreement”). This includes Claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as Claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice and opt-out provisions set forth in Section 11(i). This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects and evidences a transaction involving interstate commerce. You and Obscura expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Arbitration Agreement. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply.
Except as set forth in this Section 11, the arbitrator or arbitration body, 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 and this Arbitration Agreement, including, but not limited to any claim that all or any part thereof are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator or arbitration body shall be empowered to grant whatever relief would be available in a court under law or in equity.
Notwithstanding the parties’ decision to resolve all disputes through arbitration, each party retains the right to (i) elect to have any claims resolved in small claims court on an individual basis for disputes and actions within the scope of such court’s jurisdiction, regardless of what forum the filing party initial chose; (ii) bring an action in state or federal court to protect its intellectual property right ("intellectual property rights" in this context means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights); and (iii) seek a declaratory judgment, injunction, 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. Seeking such relief shall not waive a party’s right to arbitration under this agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action.
You and Obscura agree to submit to the personal jurisdiction of any federal or state court in New York, New York in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator; and in connection with any such proceeding, further agree to accept service of process by U.S. mail and hereby waive any and all jurisdictional and venue defenses otherwise available.
Except as set forth in Section 11(c) below, if any provision of this Arbitration Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.
THE PARTIES UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM, AND THAT RIGHTS TO PREHEARING EXCHANGE OF INFORMATION AND APPEALS MAY BE LIMITED IN ARBITRATION. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU AND CAPTIONS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW
Class Arbitration and Collective Relief Waiver. YOU AND OBSCURA ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT OTHERWISE IN THIS SECTION 11(c), ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR OTHER CONSOLIDATED ACTION AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM, UNLESS OBSCURA PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.
If there is a final judicial determination that this Section 11(c) is not enforceable as to a particular claim or request for relief, then the parties agree that that particular claim or request for relief may proceed in court but shall be severed and stayed pending arbitration of the remaining claims. This provision does not prevent you or Obscura from participating in a class-wide settlement of claim.
Arbitration Rules. The arbitration will be administered by National Arbitration and Mediation (“NAM”) and resolved before a single arbitrator. If NAM is not available to arbitrate, the parties will select an alternative arbitration provider, but in no event shall any arbitration be administered by the American Arbitration Association. Except as modified by the "Arbitration Agreement" provision, NAM will administer the arbitration in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at commercial@namadr.com.
Initiating Arbitration. Only after the parties have engaged in a good-faith effort to resolve the dispute in accordance with the Informal Dispute Resolution Procedure provision, and only if those efforts fail, then either party may initiate binding arbitration as the sole means to resolve claims using the procedures set forth in the applicable NAM rules. If you are initiating arbitration, a copy of the demand shall also be emailed to legal@obscura.net. If Obscura is initiating arbitration, it will serve a copy of the demand to the email address associated with your User Account or the email that Obscura has on file for you. The arbitrator has the right to impose sanctions in accordance with the NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with the Informal Dispute Resolution Procedure contemplated by this Arbitration Agreement.
Arbitration Location and Procedure. If you are a resident of the United States the arbitration will be conducted in the county where you reside, and if you are not a resident of the United States the arbitration shall be conducted in New York, New York, United States of America, unless you and Obscura otherwise agree or unless the designated arbitrator determines that such venue would be unreasonably burdensome to any party, in which case the arbitrator shall have the discretion to select another venue. If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and Obscura submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.
Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and Obscura (and each of the parties’ authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with the terms of the "Limitation of Liability" section of these Terms as to the types and the amounts of damages or other relief for which a party may be held liable. 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. Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.
Fees. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you further agree that 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 NAM does not constitute a default, waiver, or breach of this Arbitration Agreement while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
Right to Opt Out of the Arbitration Agreement. IF YOU DO NOT WISH TO BE BOUND BY THE “ARBITRATION AGREEMENT” AS SET FORTH IN THIS SECTION 11, THEN: (1) you must notify Obscura in writing within thirty (30) days of the date that you first accessed or otherwise become subject to this Arbitration Agreement (or any subsequent changes to the provisions of the section titled “Arbitration and Class Action Waiver”); (2) your written notification must be mailed to 169 Madison Ave.; Ste. 11185 PMB 63183; New York, NY 10016 or emailed to legal@obscura.net; and (3) your written notification must include (a) your name, (b) your address, and (c) a clear statement that you wish to opt out of this Arbitration Agreement. If you do not timely opt out of this Arbitration Agreement, such action shall constitute mutual acceptance of the terms of these “Arbitration and Class Action Waiver” provisions by you and Obscura.
Changes to the Arbitration Agreement. Obscura will provide thirty (30) days’ notice of any changes affecting the substance of this Arbitration and Class Action Waiver section, including by posting the change on the Services, or providing any other notice in accordance with legal requirements. Any such changes will go into effect 30 days after Obscura provides this notice and apply to all claims not yet filed. If you reject any such changes by opting out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If Obscura changes this “Arbitration and Class Action Waiver” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Services 30 days after such change will be deemed acceptance of those changes. If you do not agree to such change, you may opt out by providing notice as described in Section 11(i).
Venue and Governing Law.For any dispute not subject to arbitration or under the jurisdiction of a small claims court, you and Obscura agree to submit to the personal and exclusive jurisdiction of any venue in the federal and state courts located in New York, New York. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
The Terms and the relationship between you and Obscura shall be governed by the laws of the State of New York without regard to conflict of law provisions. You agree that: (i) the Service shall be deemed solely based in New York; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than New York.
The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
MISCELLANEOUS.
Entire Agreement. These Terms constitute the entire agreement between you and Obscura, and supersede any prior and contemporaneous agreements between you and Obscura on the subject matter.
Force Majeure. Under no circumstances will Obscura be liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
No Waiver and Severability. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Obscura’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. In the event any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of the Terms will remain in full force and effect.
Third-party Beneficiaries. Except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Obscura without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
CONTACT AND SUPPORT. If you wish to contact us or have any questions or concerns related to these Terms or your use of the Services, please email us at legal@obscura.net.
APPLICATION PLATFORM TERMS. If our Software is downloaded from any store, platform, or marketplace, you acknowledge that you have read, understood, and agree to the customer terms of use of such stores, platforms, and marketplace. Obscura is the licensor of the Software and the provider of the Services, and any third party (e.g., operator of the store, platform, marketplace) is not a party to these Terms.