Last Revised: May 25, 2018
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Cloud Copy may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically.
“End Users” means visitors to Users’ Websites.
“End User Content” means information about End Users that Cloud Copy processes on behalf Users pursuant to the Agreement. End User Content data types are optional and can be activated (or not) by the User, but may include the contents of an End User’s address books, namely contact lists, contact notes, and any images associated with an End User’s address book. For clarity, Cloud Copy only collects the minimum amount of personal data necessary for it to perform its obligations under the Agreement. Accordingly, End User Content containing personal data is only stored in the random access memory of Cloud Copy’s servers and never written to a physical disc. The pseudoanonymous End User Content that remains with Cloud Copy, is limited to a hash of each End User’s email address, the source of the address book, and the number of contacts in the address book.
“Intellectual Property” means (i) trade secrets, (ii) patents and patent applications, (iii) trademarks and trademark applications, (iv) service marks and service mark applications, (v) trade names, (vi) Internet domain names, (vii) copyrights and copyright applications, (viii) moral rights, (ix) database rights, (x) design rights, (xi) rights in know-how, (xii) rights in inventions (whether patentable or not), (xiii) renewals or extensions of the foregoing, (xiv) goodwill associated with the foregoing, and (xv) all other equivalent rights anywhere in the world;
“Order Form” means an ordering document specifying the Service to be provided hereunder that is entered into between you and Cloud Copy, including any addenda and supplements thereto.
“Services” collectively, means the services, websites, widgets, APIs, and software provided on or in connection with the service known commercially as “CloudSponge.”
“Software” any software and associated documentation that is made available via the Services.
“Initial Term” unless otherwise set forth in an Order Form, means the one (1) year period following your acceptance of this Agreement.
“User” means all visitors, users, and others who access the Service, including the natural person or entity who has or will accept your Terms of Service (as you may update them from time to time in your discretion).
“Website(s)” means the web properties owned, operated, or controlled by a User on which the User has integrated the Services.
“Your Data” means any data uploaded or provided by you or at your request through the Service, including any End User Content, together with any personally identifiable information derived from any of the foregoing.
USE OF OUR SERVICES
Cloud Copy provides access to customizable software that enables you to allow your End Users to upload their webmail or desktop address books to your website.
Eligibility. This is a contract between you and Cloud Copy. You must read and agree to this Agreement before using the Services. If you do not agree, you may not use the Services. You may use the Services only if you can form a binding contract with Cloud Copy, are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations (including without limitation all applicable laws regarding online conduct and acceptable content, the transmission of technical data exported from the United States or the country in which you reside, privacy, and data protection). In order to register for an account, we may, at our discretion, require that you sign up through a third-party service provider. Any use or access to the Services by anyone under 18 is strictly prohibited and in violation of this Agreement. The Services are not available to any Users previously removed from the Services by Cloud Copy.
Accounts. You need to register with Cloud Copy and create an account. You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account and you must keep your account password secure. You must notify Cloud Copy immediately of any breach of security or unauthorized use of your account. Cloud Copy will not be liable for any losses caused by any unauthorized use of your account. By providing Cloud Copy your email address you consent to our using the email address to send you any notices related to the Services, including any notices required by law, in lieu of communication by postal mail.
Cloud Copy Services. Subject to your compliance with the terms and conditions of this Agreement, we grant you a limited, non-exclusive, non-assignable, non-transferable license to internally use and access the Services solely as necessary to develop, maintain and support your Websites in accordance with the documentation or specifications included in the Services. Cloud Copy reserves all rights not expressly granted herein in the Services.
Cloud Copy Services. Subject to your compliance with the terms and conditions of this Agreement and applicable Order Form - including timely payment of fees therein, we grant you a limited, non-exclusive, non-assignable, non-transferable license to internally use and access the Services solely as necessary to develop, maintain and support your Websites in accordance with the documentation or specifications included in the Services. Cloud Copy reserves all rights not expressly granted herein in the Services.
Service Rules. You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to Cloud Copy than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; (xii) submitting to the Services or to Cloud Copy any personally identifiable information, except as necessary for the establishment of your account, receipt of the contracted-for Services, or as may otherwise be requested in writing by Cloud Copy; (xiii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein, or (xiv) except as expressly permitted under Section 2(b), you agree not to use, copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of the software underlying the Services or any part thereof, unless this is expressly permitted or required by law, or unless authorized by Cloud Copy in writing.
Modifications to the Services. We may, without prior notice, change the Service, stop providing the Service or features of the Service, or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability if in our sole determination you violate any provision of this Agreement.
Usage Limits. If you exceed a contractual usage limit, we may upgrade your subscription level to the next plan level, in each case as more fully set forth at https://www.cloudsponge.com/pricing/. You agree to pay any invoice for in accordance with the usage schedule made available at https://www.cloudsponge.com/pricing/. We may impose or modify these limitations without notice. We may utilize technical measures to prevent over-usage and stop usage of the Services by a User after any usage limitations are exceeded or suspend your access to the Services with or without notice to you in the event you exceed any such limitations.
API Use Terms. By using the Services to import email and address book information from a third-party email service provider, you agree to be bound by any additional terms set forth by that email service provider. For example, by using the Services to import contact data from Google, you agree to the Google APIs Terms of Service available at https://developers.google.com/terms/.
Refusal of Websites. Cloud Copy will have the right, in its sole discretion, to refuse to permit your use of the Services with a particular Website. Unless Cloud Copy states otherwise, such rejection will not terminate this Agreement with respect to any other Website. Cloud Copy will have no liability to you for such refusal.
Monitoring. You agree to provide us with access to your Website and other materials related to your use of the Services as reasonably requested by us to verify your compliance with this Agreement.
FEES AND PAYMENT TERMS
Payment. You agree to pay all fees or charges to your account in accordance with the applicable fees, charges and billing terms in effect at the time a fee or charge is due and payable. Unless otherwise agreed to by Cloud Copy in writing, Users must provide Cloud Copy with valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”). Your Payment Provider agreement governs use of the designated credit card account, and must refer to that agreement and not the terms of this Agreement to determine its rights and responsibilities. By providing Cloud Copy with your credit card number and associated payment information, you agree that we are authorized to immediately invoice your account for all fees and charges due and payable to Cloud Copy hereunder and that no additional consent is required. You agree to immediately notify us of any change in your billing address or credit card used for payment hereunder. We reserve the right at any time to change our prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you.
Automatic Renewal. You will be responsible for payment of the applicable subscription fee amount for the Services (the “Service Subscription Fee”) at the time you create your account and select your monthly or annual package (each, a “Service Commencement Date”). In the event that you exceed the established usage limits for your selected subscription tier, Cloud Copy reserves the right to require further payments from you to cover the cost of any such overage. Your subscription to the Services are non-cancellable and, non-refundable. Your subscription to the Services will automatically renew for successive terms equal in length to the initial term (each, a “Renewal Term”), at Cloud Copy’s then-current price for the applicable subscription tier unless earlier terminated in accordance with Section 8 (Termination). The Initial Term and Renewal Term shall, together, be referred to as the “Term”. You may terminate your access to the Services pursuant to Section 8(a) (Termination by You ) below. Any amounts not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less. Cloud Copy reserves the right to suspend your account for late or non-payment. You will maintain complete and accurate billing and contact information with Cloud Copy at all times.
Pricing. Please refer to our billing page https://www.cloudsponge.com/pricing/ for a description of the fees payable in connection with the Services.
Taxes. Cloud Copy’s fees are net of any applicable taxes, including but not limited to sales and use taxes, VAT, and any additional taxes other than U.S. taxes based on the net income, property tax or payroll taxes of Cloud Copy (“Taxes”), and whether these Taxes are imposed directly on you or on Cloud Copy. If your receipt of access to the Services, under this Agreement is subject to Taxes in any jurisdiction and you have not remitted the applicable Taxes to Cloud Copy, you will be responsible for the payment of such Taxes and any related penalties or interest to the relevant tax authority.
California Residents. The provider of Services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
OWNERSHIP AND LICENSE GRANT
Ownership. As between you and Cloud Copy, Cloud Copy owns all right, title and interest in and to the Services. Except for the access granted in Section 2(c) (Cloud Copy Services), this Agreement grants you no right, title, or interest in any intellectual property owned or licensed by us, including the Services, and without limitation the Software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, and videos therein. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices and restrictions contained in this Agreement. We claim no ownership or control over your Website or the End User Content sent or received through your Website, except for any aspects of the Services therein.
Licenses to Cloud Copy.
Your Data. To the extent necessary, you hereby grant, Cloud Copy a non-exclusive, royalty-free license to use Your Data, solely for the purposes of providing the Service to you.
Name and Logo. You expressly grant, and represent and warrant that you have all rights necessary to grant, to Cloud Copy, a royalty-free, sublicensable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, and distribute your name, logo, or any other identifying words or marks used by and/or associated with you to identify you (“Your Marks”), in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service, to identify you as a User of Cloud Copy or for marketing and publicity purposes.
Pseudoanonymous Data. Cloud Copy aggregates Your Data with other data so that results are non-personally identifiable and also collects anonymous technical logs and data regarding use of the Service (“Pseudonymous Data”). Notwithstanding anything to the contrary herein, you consent to Cloud Copy’s use of such Pseudoanonymous Data for any business purpose in Cloud Copy’s legitimate interest during or after the Term of this Agreement, including without limitation to develop and improve Cloud Copy’s Services and to create and distribute reports and other materials. For clarity, this does not give Cloud Copy the right to identify you as the source and Cloud Copy will not identify you as the source of any Pseudoanonymous Data without your prior written permission.
Feedback and Improvements. You may choose to or we may invite you to submit comments, suggestions, feedback, or ideas about the Service, including without limitation about how to improve the Service or our products (“Idea(s)”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Cloud Copy under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Cloud Copy does not waive any rights to use similar or related ideas previously known to Cloud Copy, or developed by its employees, or obtained from sources other than you.
Pursuant to sub-section 3(a) Website Policy above, you are required to notify your End Users of your use of our Services on your Website. Here’s a snippet you can use to communicate your End Users that you share their personal data with Cloud Copy. This is required by GDPR if you have any End Users based in the EUs. Please feel free to modify it to fit the way you present things.
Also Note: This is not intended to provide legal advice. We recommend you consult your own legal counsel to check that whatever you add to your policy documents matches your needs.
We use CloudSponge, as a third-party address book processing service, but we only share with them information that is required for the service offered. We also contractually bind them to keep any information we share with them confidential and to process your personal data only according to our instructions.
Should you elect to provide us with your address book information, CloudSponge will have access to the address book information we collect using its software, which typically includes the names, email addresses, phone numbers, and other contact information relating you and members of your social circles so that it can provide us with assistance in uploading your contacts to our website.
Cloud Copy cares about the integrity and security of the data you provide to us and uses commercially reasonable means to protect your data. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your data for improper purposes. You acknowledge that you provide your data to us at your own risk. To better understand the steps we take to protect your data, please review our Security and Compliance measures available at https://www.cloudsponge.com/security/.
RELATIONSHIP OF THE PARTIES
Relationship of Parties. The parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture relationship between the parties. Neither party is the representative of the other party for any purpose and neither party has the power or authority as agent, employee, or in any other capacity to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.
Marketing. Unless you notify us in writing to the contrary, we may publicly refer to you, orally or in writing, as a User of the Service, and we may publish your name and logo on the Cloud Copy website or promotional materials. You grant us all necessary rights and licenses to do so.
Independent Development. You acknowledge and agree that Cloud Copy may be independently creating applications, content and other products and services that may be similar to or competitive with your Website and its content, and nothing in this Agreement will be construed as restricting or preventing Cloud Copy from creating and fully exploiting such applications, content and other items, without any obligation to you.
Termination by You. Notwithstanding anything to the contrary herein, you may terminate this Agreement for any reason during the first 90 days of the Initial Term and receive a full refund of any pre-paid fees received, for Services not actually received. Thereafter, you may terminate this Agreement by providing Cloud Copy with written notice at least thirty (30) days prior to any Renewal Term.
Termination by Cloud Copy. Cloud Copy, in its sole discretion, may terminate or suspend your account at any time if, in Cloud Copy’s sole discretion, you violate any term or provision of this Agreement without prior notice or liability to you.
Effect of Termination. If you cancel or suspend your subscription, (i) all subscribed-for fees will become immediately due and payable, (ii) Cloud Copy reserves the right to immediately suspend your access to your account, and (iii) unless termination occurs within the first 90 days of the Initial Term, you will not receive any refund. Sections 1, 2(e), (h), 3 (to the extent payments remain outstanding), 4(a), 4(b)(ii-iv), 7, 8(c-d), 9 - 13 shall survive any termination or expiration of this Agreement. Upon termination of this Agreement for any reason, you shall cease all use of the Services.
Deletion of Data. Cloud Copy will use reasonable efforts to delete Your Data and any End User Content, to the extent that such has not already been deleted, and all related information associated with or inside your account (or any part thereof), excluding data related to past transactions or as may be required under applicable laws, upon termination of this Agreement, or upon request.
Confidential Information. “Confidential Information” means all written and oral information, disclosed by either party to the other, related to the operations of either party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information. With the exception of Ideas (as defined in Section 5(b)(iv) Feedback and Improvements above), which shall be considered proprietary to the receiving party, all Confidential Information is proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party. Each party agrees as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) that such party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that, except as required in performance of a party’s obligations under this Agreement, neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information to such of its personnel, agents and consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other party in its possession upon termination or expiration of this Agreement. In the event of any unauthorized disclosure or loss of Confidential Information, the receiving party will notify the disclosing party as soon as possible.
Exceptions. The foregoing provisions will not apply to Confidential Information that: (i) is or becomes generally publicly available or enters the public domain through no fault of the receiving party; (ii) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (iii) is already in the receiving party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (iv) is independently developed by the receiving party without use or reference to the Confidential Information of the disclosing party; or (v) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (1) to comply with the order of a court or other governmental body or applicable law, provided the party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (2) to establish a party’s rights under this Agreement.
DISCLAIMER AND LIMITATION OF LIABILITY
Disclaimer. THE SERVICES ARE PROVIDED “AS IS,” “WHERE IS,” “WITH ALL FAULTS” AND WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. CLOUD COPY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND/ NON-INFRINGEMENT. SOME ASPECTS OF THE SERVICES ARE EXPERIMENTAL AND HAVE NOT BEEN TESTED IN ANY MANNER. WE DO NOT REPRESENT, WARRANT, OR MAKE ANY CONDITION THAT THE SERVICES ARE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. WE ARE NOT RESPONSIBLE FOR ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES, ALL OF WHICH IS OBTAINED AT YOUR OWN DISCRETION AND RISK. YOUR USE OF THE SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM USE OF THE SERVICES INCLUDING, BUT NOT LIMITED TO, FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM OUR SERVICES WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE USER AGREEMENT.
The Services are controlled and operated from facilities in the United States in the state of California. Cloud Copy makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
Limitation of Liability. CLOUD COPY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL, OR RELIANCE DAMAGES RELATED TO THIS AGREEMENT OR THE SERVICE. CONSEQUENTIAL DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES AND LOST BUSINESS OPPORTUNITIES, WHETHER YOU WERE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES. IN NO EVENT WILL OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT OR RELATED TO THE SERVICES EXCEED THE AMOUNTS PAID BY YOU TO CLOUD COPY DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT(S) GIVING RISE TO LIABILITY HEREUNDER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE PARTIES HAVE NEGOTIATED THIS AGREEMENT WITH DUE REGARD FOR THE BUSINESS RISK ASSOCIATED WITH THE ARRANGEMENTS DESCRIBED IN THIS AGREEMENT.
By You. You will defend, indemnify and hold harmless Cloud Copy and its affiliates, and their respective directors, officers, agents, licensors, and other partners and employees from and against any third-party claim arising from or in any way related to your Website, your use of the Services, or your breach of any obligation herein, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature.
By Cloud Copy. In the event any infringement claim, action or allegation is brought or threatened against Cloud Copy, we may, at our sole option and expense: (i) procure for you the right to continue use of the Services or infringing part thereof; (ii) modify or amend the Services or infringing part thereof, or replace the Services or infringing part thereof with similar functionality; or (iii) if neither of the preceding is commercially practicable terminate the Agreement and the licenses granted herein.
Exclusions. This indemnification obligation will not apply if the infringement arises as a result of (i) any use of the Services in a manner other than as specified in this Agreement, (ii) any use of the Services in combination with other products, equipment, devices, systems, or data not supplied by us to the extent such claim is directed against such combination, or (iii) any alteration, modification, or customization of the Services made by any party other than Cloud Copy or our authorized representative if such infringement would not have occurred without such alteration, modification or customization.
GOVERNING LAW, ARBITRATION, AND CLASS ACTION/JURY WAIVER
Governing Law. You agree that: (i) the Services shall be deemed solely based in California; and (ii) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in San Francisco County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM CLOUD COPY. For any dispute with Cloud Copy, you agree to first contact us and attempt to resolve the dispute with us informally. In the unlikely event that Cloud Copy has not been able to resolve a dispute it has with you after sixty (60) days, 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 this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco County, California, unless you and Cloud Copy agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Cloud Copy from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND CLOUD COPY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
Entire Agreement; Amendment. This Agreement, including all documents referenced herein, constitutes the entire agreement between you and Cloud Copy and governs your use of the Service. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and this Agreement will not affect your legal relationship with such third party.
Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such term or provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder, to a third party without the other party’s written consent, except that a party may assign this Agreement without such consent as a consequence of a merger, consolidation, reorganization, or sale of substantially all of its assets or of the business to which this Agreement pertains. Any assignment in violation of the foregoing is null and void. This Agreement inures to the benefit of and is binding upon the parties hereto and their successors and assigns.
Waiver. Failure to enforce or a waiver by either party of one default or breach of the other party will not be considered to be a waiver of any subsequent default or breach.
Notices. All notices required or permitted hereunder will be in writing, delivered personally, by email, or by nationally recognized overnight courier (e.g., FedEx) at the parties’ respective addresses, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices to Company shall be sent to Cloud Copy, Inc., 548 Market Street #30734, San Francisco, CA 94104 Attn: Jay Gibb, or to such other address as Cloud Copy designates in writing. Notices to you will be sent to the most recently listed in association with your account on the Services or to such other address as Customer designates in writing. You agree that Cloud Copy may send any privacy or other notices, disclosures, reports, documents, communications and other records regarding the Services (collectively, “Notices”) in electronic form to: (1) the email address that you provided during registration, or (2) by posting the Notice on the Services. The delivery of any Notice is effective when posted to the Services or sent by Coud Copy (whichever first occurs), regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Notices electronically by canceling your account. You must give notice to us in writing via email to firstname.lastname@example.org or another address otherwise expressly provided.
Force Majeure. Neither party will be liable to the other for failure to fulfill obligations hereunder if such failure is due to causes beyond its control, including acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or war.
Government End Users. The Services are “commercial computer software” and any associated documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of the Services or such documentation by the United States Government will be governed solely by the terms of this Agreement.
No Agency. Neither party has the ability to bind the other party to any agreements or other obligations and will not attempt to do so. Cloud Copy and you are independent contractors, and nothing in this Agreement creates any partnership, joint venture or agency relationship. As between each other, each party is fully responsible for all persons and entities it employs or retains.
Remedies. All rights and remedies of the parties, under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies. A party’s breach or threatened breach of any of its covenants or agreements in this Agreement may cause irreparable injury that is inadequately compensable in monetary damages.
See the Revision archive.