Last Updated Date: April 6, 2012
The CloudOn Workspace Service
CloudOn, Inc. (“CloudOn” or “we”) is the provider of the CloudOn workspace service, which provides multi-device access to applications, storage and collaboration in the cloud (the “Services”) through our website, accessible at www.cloudon.com (the “Site”), and/or through our application for mobile devices (the “Application”).
Please read carefully the following terms and conditions (“Terms”) and our Privacy Policy, which may be found at http://www.cloudon.com/privacy-policy/ and which is incorporated herein by reference into these Terms. These Terms govern your access to and use of the Site, Application, Services and Collective Content (defined below) and constitute a binding legal agreement between you and CloudOn.
Key Content-related Terms
“Content” means text, graphics, images, music, software (excluding the Application and any Third Party Software (defined below)), audio, video, information or other materials.
“CloudOn Content” means Content that CloudOn makes available through the Site, Services or Application, including any Content licensed from a third party, but excluding Files.
“User” means a person who completes CloudOn’s account registration process, as described under the “Your Account” section below.
“Files” is defined in the “Files and Workspace” section below.
“Collective Content” means, collectively, CloudOn Content and Files.
Certain areas of the Site and Application (and your access to or use of certain Services or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Application or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Application or Collective Content.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, APPLICATION OR THE SERVICES, OR BY DOWNLOADING OR POSTING ANY CONTENT THROUGH THE SITE, APPLICATION OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED THROUGH THE SITE, APPLICATION OR SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Modification
CloudOn reserves the right, at its sole discretion, to modify, suspend, remove, disable access to, impose limits on access to, discontinue or terminate any features or portions of the Site, Application or Services at any time. CloudOn also reserves the right to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site, or provide you with notice of the modification through the Application. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Site, Application or the Services after we have posted a modification on the Site or have provided you with notice of a modification through the Application, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Application and the Services.
Requirements for Use of the Site, Application and Services
The Site, Application and Services are available for individuals aged 18 years or older. By accessing or using the Site, Application or Services, you represent and warrant that you are 18 or older.
In order to use the Services, you must have the following: (i) a device compatible for use with the Services; (ii) access to Internet services and (iii) certain software (for some versions of the Application). You will be solely responsible for acquiring and maintaining all Internet services and other hardware and software required to access and use the Services, including without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. CloudOn will not be responsible for any loss or corruption of data or any other loss or damage of any kind arising from any such hardware, software and Internet services.
Your Account
As a registered user of the Services, we may establish on your behalf or you may establish an account (“Account“). Don’t reveal your Account information to anyone else. You are solely responsible for maintaining the confidentiality and security of your Account and for all activities that occur on or through your Account, and you agree to immediately notify CloudOn of any unauthorized use of your Account. CloudOn will not be responsible for any losses arising out of the unauthorized use of your Account.
You may register (i) directly via the Services or (ii) by logging into your account with certain online accounts you may have with third party service providers (each such account, a “Third Party Account”) via the Services, as described herein. If you decide to register through a Third Party Account, we will extract the personal information you have provided to the Third Party Account (such as your “real” name, email address and other information you make publicly available via the Third Party Account) from the applicable Third Party Account and use that information to create your Account. The specific information that we extract may depend on the privacy settings you have with the Third Party Account. You hereby consent to our access to and collection of such personal information about you. You represent that you are entitled to disclose your Third Party Account login information to CloudOn and/or grant CloudOn access to your Third Party Account, without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating CloudOn to pay any fees or making CloudOn subject to any usage limitations imposed by such third party service providers.
You agree to provide accurate and complete information when you register with, and as you use, the Services (“Registration Data“), and you agree to keep your Registration Data accurate and complete.
By granting CloudOn access to any Third Party Accounts, you understand that CloudOn will access, make available any Content that you have provided to and stored in your Third Party Account (“Third Party Account Content”) so that it is available on and through the Services. Unless otherwise specified in these Terms, all Third Party Account Content, if any, will be considered to be your Files for all purposes of these Terms. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts will be available on and through your Account on the Services. Please note that if a Third Party Account or associated service becomes unavailable or CloudOn’s access to such Third Party Account is terminated by the third party service provider, then the Third Party Account Content that was available from such Third Party Account will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your Third Party Accounts, at any time, by cancelling CloudOn’s access and permission to the Third Party Account in the “Settings” section of the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WTH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. CloudOn makes no effort to review any Third Party Account Content for any purpose, including but not limited to, for accuracy, legality or non-infringement and CloudOn is not responsible for any Third Party Account Content. You may link your Account with Third Party Accounts as is permitted under the applicable terms and conditions that govern your use of each Third Party Account.
Files and Workspace
Through the Services, you will have your own virtual workspace on CloudOn (“Workspace”) where you can use different applications to access, modify, and edit files you have created and stored with third party services providers or on your own computers or other devices (“Files”). Via the Services, you may also invite third parties to access, modify and edit the Files. You agree that your access to any Files, and your invitation of any third parties to access the Files, is done at your sole risk, and CloudOn hereby disclaims any and all liability to you or any third party for any loss or liability relating to such Files or access thereto in any way. You understand and agree that CloudOn does not store or maintain copies of your Files for any significant period of time beyond your access to such Files via the Services. Accordingly, you acknowledge that you are solely responsible for backing up and storing any Files that you access or use via the Services. BY UTILIZING THE SITE, APPLICATION, CONTENT, FILES, AND/OR SERVICES, YOU CONSENT TO CLOUDON’S ACCESS TO YOUR COMPUTER AND/OR APPLICATION TO ACCESS ANY FILES WHICH YOU CHOOSE TO USE ON CLOUDON.
Licenses Granted by CloudOn to Content and Files
Subject to your compliance with these Terms, CloudOn grants you a limited, worldwide, non-exclusive, non-transferable license: (i) to view, download and print any CloudOn Content solely for your personal and non-commercial purposes; and (ii) to access, modify and edit any Files to which you are permitted access via the Site, Application and Services solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Services, Application, Collective Content (including Files except for your own Files) except as expressly permitted in these Terms. Further, you agree not to rent, lease, loan, sell, distribute, or create derivative works based on the Services in any manner, and you will not exploit the Services in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity or by reselling access to the Collective Content, Application or Services. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by CloudOn or its licensors, except for the licenses and rights expressly granted in these Terms.
License granted to Files
CloudOn does not claim any ownership rights in any Files and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any Files. By making available any Files on or through the Site, Services or Application, you hereby grant the following license to CloudOn, which CloudOn may exercise solely in connection with CloudOn’s provision of the Site, Application and Services: a worldwide, revocable, non-exclusive, transferable, royalty-free license, with the right to sublicense to other users of the Services, to use, view, copy, adapt, modify (solely in connection with providing the Services to you (e.g. file formatting), distribute (in whole or in part) (e.g. extracting part of a File to grant access to that part of a File only to another user), license, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such Files.
You acknowledge and agree that you are solely responsible for all of the Files that you make available through the Site, Application or Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all of such Files, or you have all rights, licenses, consents and releases that are necessary to grant to CloudOn the rights in such of the Files, as contemplated under these Terms; and (ii) neither the Files nor your posting, uploading, submission or transmittal of the Files or CloudOn’s use of the Files (or any portion thereof) on, through or by means of the Site, Application and Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Intellectual Property
You agree that the Services, including, but not limited to, products, graphics, user interface, editorial content, and the scripts and software used to implement the Services, contains proprietary information and material that is owned by CloudOn and/or its licensors and/or third party product or service providers, and is protected by applicable intellectual property and other laws, including but not limited to copyright laws. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the Services in compliance with these Terms. No portion of the Services may be reproduced in any form or by any means, except as expressly permitted in these Terms.
Privacy
See CloudOn’s Privacy Policy at http://www.cloudon.com/privacy-policy/ for information and notices concerning our collection and use of your personal information.
Fees
The Services are currently made available without charge. However, CloudOn reserves the right to charge for your use of the Services at any time. CloudOn will provide appropriate notice to you if it elects to charge for use of the Services or parts thereof.
Use of Service
You agree that you will use the Services in compliance with these Terms, including applicable usage rules, as set forth below (“Usage Rules”), and that any other use of the Services may constitute a violation of these Terms or intellectual property infringement.
Usage Rules
You agree not to do any of the following while using the Site, Collective Content, Files or Services:
1.Violate, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with the Site, Application or Services for any reason—or to attempt or assist another person to do so;
2.Access or attempt to access an Account that you are not authorized to access;
3.Attempt to access or search the Site, Application, Collective Content, Files or Services with any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided by CloudOn or other generally available third-party web browsers (such as Microsoft Internet Explorer or Mozilla Firefox), including but not limited to browser automation tool;
4.Attempt to probe, scan, or test the vulnerability of any CloudOn system or network or breach any security or authentication measures;
5.Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site; or plant malware on CloudOn’s computer system, those systems of CloudOn’s providers, or otherwise use the Site, Application, Collective Content, Files or Services to attempt to distribute malware;
6.Use the Services to create, edit, modify or share content that you do not have the right to use; or
7.Use the Services for any illegal purpose including but not limited to:
a.Subverting security within or against an organization;
b.Causing electronic or other attacks on other services;
c.Spreading viruses or other code that is intended to harm; and /or
d.Exporting content to countries outside the United States.
CloudOn will have the right to investigate and prosecute violations of any of the above to thefullest extent of the law. CloudOn may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that CloudOn has no obligation to monitor your access to or use of the Site, Application, Files, Services or Collective Content, but has the right to do so for the purpose of operating the Site, Application and Services, to ensure compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. CloudOn reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content, including Files, for any reason or no reason, that CloudOn, at its sole discretion, it considers to be in violation of these Terms or otherwise harmful to the Site, Application or Services.
Third Party Software
CloudOn may provide you with access to certain products and services made available by third parties (“Software Providers”) via the Services, including, but not limited to, programs and applications (“Third Party Software”). If you access Third Party Software via the Services, you understand and agree that you are solely responsible for your use of the Third Party Software, your compliance with the terms and conditions set forth in this Section related to your use of such Third Party Software, any breach of your obligations under such terms and conditions, and for the consequences (including loss or damages of any kind which CloudOn may suffer) of any such breach.
By accessing, downloading or using any Third Party Software, you are agreeing to be bound by the following Terms. If you do not agree to be bound by these Terms, then you may not access, download or use any Third Party Software.
License Grant: Conditioned upon your compliance with these Terms, CloudOn grants you a non-exclusive and non-transferable license for a single user to Execute (defined below) the executable form of the Third Party Software on a single computer or device, solely in connection with your use of the Services. CloudOn reserves all rights in the Third Party Software not expressly granted to you herein. “Execute” means to load and run the Software in order to benefit from its functionality as designed by the applicable Software Provider.
License Restrictions: Except as expressly specified herein, you may not: (a) make or distribute copies of the Third Party Software, or electronically transfer the Third Party Software outside of the Services; (b) alter, merge, modify, adapt or translate the Third Party Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Third Party Software to a human-perceivable form; (c) rent, lease, or sublicense the Third Party Software; (d) modify the Third Party Software or create derivative works based upon the Third Party Software; and (e) use the Third Party Software to develop any product having the same primary function as the Third Party Software.
Ownership: The foregoing license gives you limited license to use the Third Party Software solely in connection with your use of the Services. The Software Providers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Third Party Software, and all copies thereof. All rights not specifically granted herein, are reserved.
Term. The license to the Third Party Software remains in effect for a period of 75 years, unless earlier terminated by CloudOn. You may terminate the license at any time by destroying all copies of the Third Party Software in your possession or control, if any, and ceasing your access to and use of the Third Party Software. The license granted herein will automatically terminate, with or without notice from CloudOn, if you breach any of these Terms. Upon termination, you must promptly destroy any copies of the Third Party Software in your possession or control.
Exports. You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Third Party Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
Maintenance and Support
CloudOn will provide support services to you with respect to the Site, Application and Services via email. Please email us at help@cloudon.com if you have any problems with the Services or otherwise need assistance with the Services, and we will respond at our earliest convenience. You understand and agree that CloudOn may need to access your Files to provide support in connection with the Services. CloudOn does not provide support services for any Third Party Software.
Application License
Subject to your compliance with these Terms, CloudOn grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal use. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (“App Store Sourced Application”), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. CloudOn reserves all rights in and to the Application not expressly granted to you under these Terms.
Accessing and Downloading the Application from the App Store
The following applies to any App Store Sourced Application:
You acknowledge and agree that (i) these Terms are concluded between you and CloudOn only, and not Apple, and (ii) CloudOn, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between CloudOn and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of CloudOn.
You and CloudOn acknowledge that, as between CloudOn and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and CloudOn acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between CloudOn and Apple, CloudOn, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
You and CloudOn acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of CloudOn used herein are trademarks or registered trademarks of CloudOn. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Copyright and IP Policy
CloudOn respects copyright law and expects its users to do the same. CloudOn has adopted and implemented a policy that provides for the termination in appropriate circumstances of registered users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see CloudOn’s Copyright and IP Policy at http://site.cloudon.com/copyright/ for further information.
Feedback
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Application and Services (“Feedback”). You may submit Feedback by emailing us at help@cloudon.com. You acknowledge and agree that all Feedback will be the sole and exclusive property of CloudOn and you hereby irrevocably assign to CloudOn and agree to irrevocably assign to CloudOn all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein.
Termination
If you fail, or CloudOn suspects that you have failed, to comply with any of the provisions of these Terms, CloudOn, at its sole discretion, without notice to you may suspend or disable your Account or terminate these Terms. CloudOn reserves the right to revoke your access to and use of the Site, Application, Services and Content at any time, with or without cause. In the event CloudOn terminates these Terms for your breach, you will remain liable for all amounts due hereunder. You may cancel your Account at any time by sending an email to help@cloudon.com.
Disclaimer of Warranties; Liability Limitation
CloudOn does not guarantee, represent, or warrant that the SITE, APPLICATION, Services or any third party software will (I) meet your requirements or be availialbe on an uninterrupted, secure or error-free basis;(II) BE AVAILABLE AT ALL TIMES; OR (III) BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND CLOUDON DISCLAIMS ANY LIABILITY RELTATING THERETO.
You expressly agree that your use of, or inability to use, the Services is at your sole risk. The SITE, APpLICATION, COLLECTIVE CONTENT, Services and any third party software are (except as expressly stated by CloudOn) provided “as is” and “as available” for your use, without warranties of any kind, either express or implied, including all implied warranties of merchantability, fitness for a particular purpose, title, and non infringement. Because some jurisdictions do not allow the exclusion of implied warranties, the above exclusion of implied warranties may not apply to you.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CLOUDON OR THROUGH THE SITE, application, SERVICES, COLLECTIVE CONTENT or third party software, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
In no case WILL CloudOn, its directors, officers, employees, affiliates, agents, partner, contractors, or licensors be liable for any indirect, incidental, punitive, special, or consequential damages arising from your use of any of the services or third party software or for any other claim related in any way to your use of the services or third party software, including, but not limited to, any errors or omissions in the serviceS or third party software, or any loss or damage of any kind incurred as a result of the use of the Services or third party software, or otherwise made available via the services or third party software, even if advised of their possibility. In no event will CLOUDON’S aggregate liability arising out of or in connection with THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES, THIRD PARTY SOFTWARE, COLLECTIVE CONTENT OR FILES EXCEED TWENTY DOLLARS ($20), IF YOU HAVE NOT MADE ANY PAYMENTS TO CLOUDON FOR USE OF THE SERVICES AND THIRD PARTY SOFTWARE, OR THE AMOUNTS PAID BY YOU TO CLOUDON FOR USE OF THE SERVICES IN THE THREE (3) MONTH PERIOD PRIOR TO THE APPLICABLE CLAIM, IF YOU HAVE MADE ANY PAYMENTS TO CLOUDON, AS APPLICABLE. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, CloudOn’s liability will be limited to the extent permitted by law.
Indemnity
You agree to indemnify, defend and hold CloudOn, its directors, officers, employees, affiliates, agents, partners, contractors, and licensors harmless with respect to any claims arising out of your breach of these Terms, your Files, your use of the Services, Site, Application or Collective Content, or any action taken by CloudOn as part of its investigation of a suspected violation of these Terms.
Links
The Site, Services or Application may contain links to third-party websites or resources. You acknowledge and agree that CloudOn is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by CloudOn of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products, or services on or available from such websites or resources.
Export Control
You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the Application nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App Store Sourced Application, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Dispute Resolution
You and CloudOn agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site, Services or Application (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and 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 party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and CloudOn are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and CloudOn otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/si.asp?id=3477 and a separate form for California residents at www.adr.org/si.asp?id=3485.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and CloudOn otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and CloudOn submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. 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’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. CloudOn will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, CloudOn will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the “Modification” section above, if CloudOn changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to help@cloudon.com) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of CloudOn’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and CloudOn in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
Miscellaneous
These Terms constitutes the entire agreement between you and CloudOn and governs your use of the Site, Application, Services and Collective Content, superseding any prior agreements between you and CloudOn. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or Third Party Software. If any part of these Terms is held invalid or unenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions will remain in full force and effect. CloudOn’s failure to enforce any right or provisions in these Terms will not constitute a waiver of such or any other provision. CloudOn will not be responsible for failures to fulfill any obligations due to causes beyond its control.
You may not assign or transfer these Terms, by operation of law or otherwise, without CloudOn’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. CloudOn may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Santa Clara County, California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
CloudOn may notify you with respect to the Services by sending an email message to your Account email address, or by a posting on the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of CloudOn to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of CloudOn. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Contacting CloudOn
If you have any questions about these Terms, please contact CloudOn at help@cloudon.com.
