CloudFish Terms of Service
These Terms of Service (˝Terms˝) are between you
(˝you˝ or ˝your˝), as an authorized user of the Service (as
defined below), and CloudFish LLC, a Georgia based Limited Liability Company (each,
˝CloudFish˝ or ˝we˝ or ˝us˝), as specified below.
Your Service is provided to you, and you are legally a customer of
CloudFish LLC if you reside in the United States or if you reside outside of
the United States.
CloudFish provides the CloudFish digital content synchronization and
data encryption and decryption service that allows you to synchronize your
digital content (˝Files˝) across your smartphones, tablets, PCs and
devices and to store and access them through the Internet (˝Service˝)
and the data encryption and decryption that is involved in this process. These
Terms set forth the terms and conditions of your use of the Service. By setting
up a CloudFish account, by using the Service, by using or downloading the CloudFish
software (˝Software˝), or by clicking the ˝I accept˝
button, you agree to these Terms.
These Terms include the terms of this Terms of Service together
with any operating rules, policies, price schedules or other supplemental
documents expressly incorporated herein by reference and published from time to
time by CloudFish.
For Canadian Customers: Please note that when you place an order
to purchase on the CloudFish website, it constitutes an offer to purchase and
remains subject to CloudFish's acceptance. Goods or services listed or
described on the CloudFish website constitute an invitation to make an offer to
purchase.
If you begin, but fail to complete, the sign-up process for the
Service, CloudFish may contact you in an effort to help you sign up for the
Service or another service of CloudFish or its affiliates. You hereby authorize
CloudFish and its affiliates to make such contact, even if you ultimately
determine not to sign up for any CloudFish or affiliate service.
Account Setup
To use the Service, you need to set up a CloudFish account. You
may establish either an individual free account (˝Free Account˝), an
individual premium Paid Account (˝Premium Account˝), an individual
trial account with a limited time restriction (“Trial Account”) or a CloudFish
for Business account (˝Enterprise Account˝). If you are establishing
an account through a CloudFish distribution partner, account options (such as
the ability to participate in upgrades, downgrades, and conversions) and
payment requirements made available to you may vary from those described in
these Terms; however, these Terms govern your use of the Service and your
relationship with CloudFish LLC.
When you select an account, we prompt you for registration
information, such as your name, email address, account password, and mailing
address. For Premium Accounts and Enterprise Accounts we or our billing
processors collect your billing information either upon initial registration,
when you upgrade to a Premium Account, or prior to the end of any available
Free Trial (described below), depending upon the type of accounts made
available to you. All of this registration information is protected by our Privacy
Policy, the most current terms of which are incorporated herein by
reference. By setting up a CloudFish account, by using the Service, by using or
downloading the Software, or by clicking the ˝I accept˝ button, you
agree to the Privacy Policy.
File Sync, Storage and
Confidentiality
After setting up your account and downloading our Software, you
can select the Files you want to sync and/or store. You can change the Files
you want to sync or store whenever you want. In order to make the Service
available to you, we need your permission to sync and store your Files.
Accordingly, you hereby grant to CloudFish a license: (i) to use, copy,
transmit, distribute, store and cache Files that you choose to sync and/or
store; and (ii) to copy, transmit, publish, and distribute to others the Files
as you designate, whether through the sharing or public linking features of the
Service, in each case solely to provide the Service to you.
Your Files are not accessible by third parties unless you elect to
make them available to others through the Service. We respect the privacy and
confidentiality of your Files, as provided in our Privacy Policy.
Free Accounts
Free Accounts don't have all the features of Premium Accounts and
are subject to limitations described in these Terms and as implemented by CloudFish
from time to time. For example, you may have only one Free Account at a time
and may not have certain product features like data encryption. A free account
holder may upgrade to a Premium Account by following the CloudFish upgrade
procedures.
Free Trials
Premium Accounts and Enterprise Accounts may have a free trial
period, if offered by CloudFish, during which time the account can be used
without charge (a ˝Free Trial˝). CloudFish reserves the right to
limit the eligibility, features and storage capacity for Free Trials, and, for Enterprise
Accounts, the number of Group Members. For example, if you have previously used
the Service on a trial basis or have previously paid for a CloudFish account,
then you are not be eligible for a Free Trial unless we determine otherwise. If
you are eligible for a Free Trial, you will be charged for your selected
account at the end of the Free Trial unless you cancel the account prior to the
end of the Free Trial. If you are not eligible for a Free Trial, you will be
charged for your account upon registration. IF YOU HAVE PROVIDED YOUR CREDIT
CARD INFORMATION UPON INITIAL ACCOUNT SETUP, YOU ACKNOWLEDGE THAT YOU MUST
CANCEL THE ACCOUNT BEFORE THE END OF THE FREE TRIAL TO AVOID BEING CHARGED
AFTER THE FREE TRIAL. IF YOU HAVE NOT PROVIDED ANY CREDIT CARD INFORMATION UPON
INITIAL ACCOUNT SETUP, THEN YOU MUST PROVIDE IT AND PURCHASE THE PREMIUM
ACCOUNT PRIOR TO THE END OF THE FREE TRIAL OR YOUR ACCOUNT WILL BE TERMINATED
AT THE END OF THE FREE TRIAL PERIOD.
Subscription Period and
Subscription Fees
Subscription Period. The subscription period
for Premium Accounts and Enterprise Accounts can be month-to-month, yearly, or
another duration described in the account features for your account
(˝Subscription Period˝). For Free Accounts, the Subscription Period
is ninety (15) days unless earlier terminated as provided in these Terms.
Subscription Fees. Enterprise Accounts and Premium
Accounts are subject to fees based upon the account type you've selected
(˝Subscription Fees˝). You agree to pay all applicable Subscription
Fees. If you set up a Premium Account or Enterprise Account but don't cancel it
by the end of the Free Trial, CloudFish will charge your credit card the
current fee for the type of account you've chosen, plus applicable taxes. For
renewals, CloudFish will automatically charge your credit card the amount of
the then-current fee for your type of account, plus applicable taxes. CloudFish
reserves the right to charge value-added taxes, sales, or other taxes on the
Service as it deems appropriate, and reserves the right to change prices or institute
new charges for access to or use of the Service at any time upon not less than
thirty (15) days notice to you, either by (i) posting pricing plan changes on
the CloudFish website, or (ii) sending information regarding the pricing plan
changes to the email address you provided CloudFish. You are responsible for
regularly reviewing such pricing information. Continued use of the Service or
non-termination of your account after such thirty (15) day period constitutes
your acceptance of the prices as modified. All payments are non-refundable. To
the extent that payment mechanisms are provided through third parties, you
agree that CloudFish shall have no liability to you arising out of the acts or
omissions of such third parties. BY CREATING A PREMIUM ACCOUNT OR ENTERPRISE
ACCOUNT YOU CONSENT TO ALLOW CLOUDFISH TO CHARGE YOUR CREDIT CARD, EITHER
DIRECTLY OR THROUGH ITS PAYMENT PROCESSORS, FOR THE AMOUNTS DUE FOR YOUR
INITIAL SUBSCRIPTION PERIOD AND FOR ADDITIONAL SUBSCRIPTION PERIODS UNTIL YOUR
ACCOUNT IS CANCELED OR TERMINATED.
Renewals and Cancellations
Accounts subject to Subscription Fees shall automatically renew
for the same Subscription Period unless you cancel the account by the end of
the then-current Subscription Period. Only the Admin can cancel an Enterprise
Account. You can cancel your account at any time by contacting customer
service. Cancellation will be effective immediately. Please note that after you
cancel your account, you will not be able to use or access the Service and you
will not be entitled to a refund of any fees that you've paid. For Enterprise
Accounts, after the Admin cancels the Enterprise Account, Group Members will
not be able to use or access the Service.
Upgrades and Downgrades
Account Upgrades. You can upgrade your Premium
Account or Free Account at any time. You can upgrade from a Free Account to a Premium
Account or from Premium Account to an Enterprise Account. When you upgrade from
a Premium Account to an Enterprise Account, we will apply the unused portion of
your old Subscription Fee to the cost of your upgraded account type and if
there is any money left over, we will apply that to extend your initial
Subscription Period based upon the daily charge for your upgraded account.
Downgrades. You can downgrade your Premium Account to a
different Premium Account with a different set of product features or with a
shorter Subscription Period. However, any downgrade will apply and you will be
charged for the downgraded account type only after the end of the Subscription
Period for your existing account.
.
Special Terms for Enterprise
Accounts
If you have elected to set up or convert to a Enterprise Account
or if you have a Group Member Account (described below), then in addition to
the other provisions of these Terms, this Section (˝Special Terms for Enterprise
Accounts˝) shall apply to your use of the Service.
Enterprise Account Setup. Enterprise Accounts are
set up by a group administrator (the ˝Admin˝) who registers as the
Admin, selects the type of Enterprise Account, and pays for the Enterprise
Account after expiration of an Enterprise Account Free Trial, if any, as
described below. The Admin identifies members of the group by providing email
addresses for each group member (˝Group Member˝). As an Admin, you
are required to pay the fees for the use of your Enterprise Account by all
Group Members. Each Group Member can then set up his/or her account within that
Enterprise Account (each a ˝Group Member Account˝) through the
account setup process for Group Members. Group Members may not participate in
any CloudFish contests or promotions except as expressly authorized in the
terms and conditions associated with such contests or promotions. The Admin is
also a Group Member.
Enterprise Account Management. Using the Enterprise
Account web management console, the Admin maintains exclusive control over the
management of the Enterprise Account, such as adding or removing Group Members,
enabling or disabling Group Member Accounts, identifying the email address
associated with each Group Member Account, and designating storage capacity for
each Group Member. The Admin controls Enterprise Account management and may
have access to Group Member Files, but each Group Member controls how his or
her Files are stored and/or synched across the Group Member's devices. As a
Group Member, you acknowledge and agree that, since the Admin maintains
management control over Group Member Accounts, CloudFish is not responsible
for, and will not have any liability to you for, any actions taken by the Admin
with respect to your Group Member Account or Group Member Files. As an Admin,
you acknowledge and agree that Group Members maintain control of how the Files
are used with the Service and that CloudFish is not responsible for, and will
not have any liability to you for, any actions taken by a Group Member with
respect to the Enterprise Account or Group Member Files.
Enterprise Account Upgrades. The Admin can upgrade the Enterprise
Account at any time. The Admin can add product features or Group Member
Accounts to a Enterprise Account, but (i) any new Group Member Accounts will
have the same Subscription Period as the existing Enterprise Account; (ii) you
will be charged a pro-rata portion of the applicable Subscription Fee, based on
the time remaining in your Subscription Period; and (iii) the Admin has to
assign new Group Member Accounts to new Group Members. In addition, if you have
an Enterprise Account on annual Subscription Period and you want to upgrade to
a monthly Subscription Period, any such request will take effect after the end
of the annual Subscription Period for your existing account type, at which time
you will be charged for the new account type.
Conversions to Enterprise Accounts. If you
are a Premium Account holder, you can convert your Premium Account to an Enterprise
Account. If you elect to convert a Premium Account to an Enterprise Account, we
will issue you a refund of a pro-rata portion of the Subscription Fee you have
paid, and then charge you for the type of Enterprise Account you have selected.
If you convert a Premium Account to a Enterprise Account, you cannot convert
back to a Premium Account.
Enterprise Account Downgrades. You can downgrade your Enterprise
Account to a Enterprise Account with fewer features, with fewer Group Members,
and/or with a shorter Subscription Period. However, any downgrade will apply
and you will be charged for the downgraded account type only after the end of
the Subscription Period for your existing account type.
IF YOU ARE DOWNGRADING TO A LOWER NUMBER OF GROUP MEMBERS, THE
ADMIN MUST REMOVE (NOT MERELY DISABLE) THE NUMBER OF GROUP MEMBERS NECESSARY TO
MEET THE REQUIREMENTS OF THE DOWNGRADED ENTERPRISE ACCOUNT. IF THE ADMIN
INSTITUTES AN UPGRADE FOR ADDITIONAL STORAGE OR FOR NEW GROUP MEMBER ACCOUNTS
WHEN A CORRESPONDING DOWNGRADE IS PENDING, THE DOWNGRADE WILL BE AUTOMATICALLY
CANCELED.
Termination of Group Member Accounts. If you
are a Group Member, your Group Member Account can be terminated by the Admin at
any time. If your Group Member Account is terminated, you cannot thereafter use
the same email address of your Group Member Account to open another account.
Requirements to Use the
Service
To use the Service, you will need to have a compatible computer or
mobile device with Internet access. If you access the Service using a wireless
data plan on your mobile device, you may incur increased charges from your wireless
carrier. You are responsible for paying all wireless charges and for all
equipment and other third party services you use to access Service. You must
have all necessary rights to grant the licenses to CloudFish set forth in these
Terms and you represent and warrant to CloudFish that you have such rights and
that CloudFish's exercise of the licenses will not violate applicable law or
infringe or violate the rights of any party. You understand and agree that the
Service may include certain communications from CloudFish, such as service
announcements and administrative messages, and that these communications are
considered part of your subscription and you will not be able to opt out of
receiving them. CloudFish may also send you promotional offers and news about CloudFish
or its affiliates, but you can opt out from receiving those communications at
any time unless you are resident outside of the European Economic Area and have
a Free Account. You represent and warrant that you are at least 18 years of age
or, as applicable, the age of majority in the country, state or province in
which you reside, and that you possess the legal right and ability to enter
into these Terms. You agree to be financially responsible for your use of the
Service (as well as for use of your account by others, including, without
limitation, minors living with you) and to comply with your responsibilities
and obligations as stated in these Terms.
Usage Restrictions
General Restrictions. Your account and any
specific URL associated with your account are for your individual use only. You
may not resell accounts or any account features. Your use of the Service is
subject to all applicable local, state, national, and international laws and
regulations (including, without limitation, those governing account collection,
export control, consumer protection, unfair competition, anti-discrimination,
securities or false advertising). You agree: (i) not to use the Service for any
illegal purpose; (ii) not to interfere with or disrupt networks connected to
the Service; (iii) to comply with all regulations, policies and procedures of
networks connected to the Service; (iv) not to use the Service to infringe any
third party's copyright, patent, trademark, trade secret or other proprietary
rights or rights of publicity or privacy; (v) not to attempt to gain
unauthorized access to other computer systems; (vi) to not interfere with
another customer's use and enjoyment of the Service; and (vii) to keep your
account information current, complete, and accurate. You agree that you will
not use the Service to disseminate any advertising, promotional materials,
spam, chain letters, junk mail, or any activity making use of distribution
lists to any person who has not given specific permission to be included in such
a process or on such list. You acknowledge and agree that CloudFish reserves
the right to establish limits on the number and size of messages transmitted
through the Service and/or the size and number of Files that can be made
available through a public link. You agree that you will not use the Software
or Service to create, copy, store, transmit, share or distribute any Files,
images, sounds, messages or other material which are obscene (as determined in CloudFish's
sole discretion), harassing, abusive, threatening, racist, malicious,
fraudulent or libelous, contain nudity, are unlawful, violate or infringe the
rights of third parties, or expose CloudFish to any actual or potential civil
or criminal liability. CloudFish reserves the right in its sole discretion to
take any action that it deems necessary if you violate these Terms, including
suspension or termination of your account. CloudFish reserves the right to take
any action with respect to the Service that CloudFish deems necessary or
appropriate in its sole discretion, if CloudFish believes you, your Files, or
your actions may create liability for CloudFish, compromise or disrupt the
Service for you or other customers, or cause CloudFish to lose (in whole or in
part) the services of CloudFish's suppliers.
Website Terms of Use. You agree to abide by the
Website Terms of Use, the most current terms of which are incorporated herein
by reference.
Service Limitations
CloudFish uses reasonable efforts to make the Service available 7
days a week 24 hours a day. However, CloudFish does not guarantee availability
of the Service, shall not have any liability to you for any unavailability of
the Service, and is under no obligation to provide you with maintenance,
technical support or updates for the Software or Service unless provided in
conjunction with your plan type and, if provided, in the manner as determined
by CloudFish from time to time. CloudFish reserves the right to suspend access
to your account if your use of the Service disrupts, impedes or otherwise
negatively impacts the operation of the Service or the use of the Service by
other customers.
License to Use the Service
and Software
License. Subject to these Terms, CloudFish grants you a non-exclusive,
non-transferable license when you set up a CloudFish account, to: (i) download
and install the Software on devices within your possession and control, subject
to limitations for Free Accounts and other device limitations as required by CloudFish
from time to time; and (ii) use the Software to access and use the Service for
your own use. Except for the foregoing license grant, these Terms do not grant
you any rights to patents, copyrights, trade secrets, trademarks, source code,
or any other right, title or interest in the Software or Service, ownership of
which is retained by CloudFish and its suppliers, as applicable. Software
updates are governed by these Terms. The Software is licensed, not sold, to you
for use only under these Terms, and CloudFish reserves all rights not expressly
granted to you. Elements of the Software may not be used separate from the
Software as a whole unless subject to a license granting separate use. Except
as expressly authorized in these Terms or allowed by applicable law, you may
not use, copy, modify, reverse engineer, disassemble, decompile, modify, or
transfer the Software, or otherwise attempt to derive the source code of the
Software, or authorize any third party to do any of the foregoing.
Compliance with Laws. You agree to comply with
any local laws and regulations regarding your right to download, install,
import, export or use the Software and/or Service. You acknowledge and agree
that the Software is controlled for export purposes and that your use of the
Software may be subject to audit to ensure compliance with these Terms. You
agree to: (i) strictly comply with all United States export laws and
regulations, including, but not limited to the U.S. Department of Commerce
(DOC) Export Administration Regulations (EAR), the Office of Foreign Asset
Control (OFAC) regulations as administered by the Department of Treasury, and
all treaties, Executive Orders, laws, statutes, amendments, or supplement
thereto, including all applicable international, national, state, regional and
local laws, and regulations; (ii) not export, re-export or transfer, directly
or indirectly, the Software to any prohibited country outlined in the EAR, or
to any denied person, entity, or against any general denial order, as listed
with the DOC as follows: Denied Persons List, Entities List, the Unverified
List, and General Order No. 3 to Supplement No. 1 to Part 736 of the EAR, or on
any OFAC list, currently the Specially Designated Nationals, Specially
Designated Narcotics Traffickers, or Specially Designated Terrorists; (iii) not
export, or re-export the Software to any military entity or military end-use
not authorized under the applicable provision of the EAR; (iv) not to export or
re-export into Cuba, Iran, North Korea, Sudan, Syria or any other country
subject to U.S. trade sanctions, to individuals or entities controlled by such
countries, or to nationals or residents of such countries other than nationals
who are lawfully admitted permanent residents of countries not subject to such
sanctions; and (v) not to license, sell, provide or distribute the Software for
any prohibited use or to any prohibited end user.
Governments. The Software is a ˝commercial item,˝
as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of
˝commercial computer software documentation,˝ as such terms are used
in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1
through 227.7202-4, all U.S. Government end users acquire the Software with
only those rights set forth in these Terms. THE SOFTWARE IS PROTECTED BY UNITED
STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR
DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
Term and Termination
Your rights to use the Service and Software are effective through
the end of applicable Subscription Period unless earlier terminated. CloudFish
reserves the right to terminate these Terms and your account without prior
notice and without liability to you upon requests by government and/or law
enforcement agencies.
For Free Accounts, the availability and account features may be
limited, modified or suspended, and the Free Account may be terminated, by CloudFish
at any time at its sole discretion without notice or liability to you. CloudFish
may terminate your Premium Account or your Enterprise Account (i) effective as
of the end of the then-current Subscription Period for any reason or no reason
and without liability to you, (ii) upon your breach or failure to comply with
any term or condition of these Terms, without liability to you, and (iii)
without cause during the Subscription Period provided that CloudFish returns a
pro rata portion of the Subscription Fee to the party who has paid for the
account.
Upon termination, the licenses granted to you by CloudFish shall
cease, you will not be able to access or retrieve any Files stored in your
account, and you shall promptly destroy the Software or return the Software to CloudFish.
If you terminate your account, you agree that CloudFish may keep your Files on
its servers for reasonable time thereafter to enable you to easily renew if you
so desire.
In the event of expiration or termination of your account, the
representations made by you in these Terms, and the obligations of each party,
which by their nature would continue beyond the termination or expiration of
these Terms, including without limitation the Sections entitled ˝Usage
Requirements˝, ˝Compliance with Laws˝, ˝Governments˝,
˝Term and Termination˝, ˝Rights of Co-Brand Partners˝,
˝Disclaimer of Warranties˝, ˝Limitation of Liability˝,
˝Indemnification˝, ˝Modifications to the Terms˝,
˝Agreement to Arbitrate all Disputes˝, and ˝General˝ shall
survive such expiration or termination.
Modifications to the Terms
CloudFish may amend these Terms at any time upon thirty (15) days'
notice by (i) posting a revised version of these Terms on the CloudFish
website, and/or (ii) sending information regarding the amendments to the email
address you provide to CloudFish, You are responsible for regularly reviewing
the CloudFish website to obtain timely notice of such amendments. Your
continued use of the Service after such thirty (315) day period shall be deemed
acceptance by you of the amended Terms.
Rights of Co-Brand Partners
If you have created an account through a co-branded version of the
Service, you hereby authorize CloudFish to provide your email address to the
applicable CloudFish co-brand partner. You acknowledge and agree that CloudFish
has no control of, and shall have no liability to you for, the use of your
email address by the co-brand partner. It is your obligation to review the
separate privacy policy and/or additional terms that may apply to a co-branded
version of the Service.
Disclaimer of Warranties
THE SOFTWARE AND THE SERVICE ARE PROVIDED ON AN ˝AS IS˝
AND ˝AS AVAILABLE˝ BASIS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, CLOUDFISH EXPRESSLY DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT
NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A
PARTICULAR PURPOSE, THE USABILITY, CONDITION OR OPERATION OF THE SOFTARE OR
SERVICE, COMPATIBILITY, SECURITY, ACCURACY, AND NON-INFRINGEMENT. CLOUDFISH
DOES NOT WARRANT THAT: (I) THE ACCESS, USE OR QUALITY OF THE SOFTWARE OR
SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, TIMELY, SECURE OR MEET YOUR
REQUIREMENTS OR EXPECTATIONS OR ANY PARTICULAR CRITERIA OF PERFORMANCE OR
QUALITY; (II) THE RESULTS OBTAINED FROM USE OF THE SOFTWARE OR SERVICE WILL BE
ACCURATE OR RELIABLE; OR (III) ANY ERRORS IN THE SOFTWARE OR THE SERVICE WILL
BE CORRECTED. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE
SOFTWARE AND SERVICE REMAINS WITH YOU, EVEN IF ADVISED OF THE POSSIBILITY OF
DAMAGES, WHETHER ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
Limitation of Liability
IN ADDITION, YOU AGREE THAT NEITHER CLOUDFISH NOR ANY OF ITS
AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT OR
INDIRECT (INCLUDING CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES),
INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF
CONFIDENTIAL INFORMATION OR OTHER INFORMATION OR DATA, HARM TO YOUR COMPUTER
SYSTEM, HARM THAT RESULTS FROM YOUR ACCESS TO THE SERVICE OR SOFTWARE, BUSINESS
INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY,
NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, ARISING OUT OF
THESE TERMS OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE
SOFTWARE OR THE SERVICE, AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT THERETO,
WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF CLOUDFISH OR ANY
AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE ENTIRE LIABILITY
OF CLOUDFISH AND ITS AFFILIATES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE
USE OF THE SOFTWARE AND THE SERVICE OR ANY BREACH OF THESE TERMS IS LIMITED TO
THE LESSER OF: (I) THE AMOUNT ACTUALLY PAID BY YOU FOR ACCESS TO AND USE OF THE
SOFTWARE OR THE SERVICE IN THE THREE (3) MONTHS PRECEDING THE DATE OF YOUR
CLAIM OR (II) U.S.$500.00. YOU HEREBY RELEASE CLOUDFISH AND EACH OF ITS
AFFILIATES FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF
THIS LIMITATION. SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE
EXCLUDED OR MODIFIED OR LIABILITY TO BE LIMITED, SO NOT ALL OF THE ABOVE LIMITATIONS
MAY APPLY TO YOU.
YOU WILL NOT RELY ON ANY REPRESENTATION OR WARRANTY, EXPRESSED OR
IMPLIED, MADE BY ANY PERSON OTHER THAN AN AUTHORIZED OFFICER OF CLOUDFISH, IN
EVALUATING THE SERVICE OR SOFTWARE OR ANY OTHER SERVICE OF CLOUDFISH OR ITS
AFFILIATES.
Indemnification
You agree to indemnify, defend and hold CloudFish and its
officers, directors, employees, agents, licensors, affiliates and suppliers
harmless from and against all claims, liabilities, losses, expenses, damages,
and costs, including but not limited to reasonable attorneys' fees, arising out
of claims based upon your use of the Service or Software, including but not
limited to: (i) a violation or breach of these Terms by you, (ii) any activity
related to access or use of your account (including but not limited to
negligent or wrongful conduct) by you or any other person accessing or using
your account and/or Files, or (iii) CloudFish's authorized use of data, Files
or other content provided by you or obtained by CloudFish as authorized by you
under these Terms.
Agreement to Arbitrate All
Disputes
You and CloudFish agree that all disputes and claims between you
and CloudFish shall be settled by binding arbitration instead of in courts of
general jurisdiction. This agreement to arbitrate is intended to be broadly
interpreted and includes, but is not limited to, any dispute, claim or
controversy arising out of or relating in any way to the Service, the Software,
the CloudFish website, these Terms or any aspect of the relationship between
you and CloudFish. You agree that, by agreeing to these Terms, the U.S. Federal
Arbitration Act governs the interpretation and enforcement of this provision,
and that you and CloudFish are each waiving the right to a trial by jury or to
participate in a class action. Notwithstanding the foregoing, either party may
bring an individual action in small claims court. This arbitration provision
does not preclude you from bringing issues to the attention of federal, state,
or local agencies, including, for example, the Federal Communications
Commission. Such agencies can, if the law allows, seek relief against CloudFish
on your behalf. This arbitration provision shall survive termination of these
Terms and the termination of your account.
A party who intends to seek arbitration must first send to the
other, by certified mail, a written Notice of Dispute (˝Notice˝). The
Notice to CloudFish should be addressed to: CloudFish, ATTN: CLOUDFISH LLC, 2972
Webb Bridge Road Alpharetta, GA 30009, USA (˝Notice Address˝). The Notice
must (a) describe the nature and basis of the claim or dispute, and (b) set
forth the specific relief sought (˝Demand˝). If CloudFish and you do
not reach an agreement to resolve the claim within 30 days after the Notice is
received, you or CloudFish may commence an arbitration proceeding. During the
arbitration, the amount of any settlement offer made by CloudFish or you shall
not be disclosed to the arbitrator until after the arbitrator determines the
amount, if any, to which you or CloudFish is entitled. You may download or copy
a form Notice and a form to initiate arbitration at www.adr.org. If you are
required to pay a filing fee, after CloudFish receives notice at the Notice
Address that you have commenced arbitration, it will promptly reimburse you for
your payment of the filing fee, unless your claim is for greater than
US$10,000.
The arbitration will be governed by the Commercial Arbitration
Rules and the Supplementary Procedures for Consumer Related Disputes
(collectively, ˝AAA Rules˝) of the American Arbitration Association
(˝AAA˝), as modified by these Terms, and will be administered by the
AAA. The AAA Rules and Forms are available online at www.adr.org.
The arbitrator is bound by the terms of these Terms. All issues are for the
arbitrator to decide, including issues relating to the scope and enforceability
of this arbitration provision. Unless CloudFish and you agree otherwise, any
arbitration hearings will take place by video or telephone conference. If your
claim is for US$10,000 or less, CloudFish agrees that you may choose whether
the arbitration will be conducted solely on the basis of documents submitted to
the arbitrator, through a telephonic hearing, or by an in-person hearing as
established by the AAA Rules. If your claim exceeds US$10,000, the right to a
hearing will be determined by the AAA Rules. Regardless of the manner in which
the arbitration is conducted, the arbitrator shall issue a reasoned written
decision sufficient to explain the essential findings and conclusions on which
the award is based. The arbitrator is not authorized to award punitive or other
damages not measured by the prevailing party's actual damages, and may not, in
any event, make any ruling, finding or award that does not conform to the terms
and conditions of these Terms.
CloudFish may make a written settlement offer any time before an
arbitrator is selected. If the arbitrator issues you an award that is greater
than the value of CloudFish's last written settlement offer made before an
arbitrator was selected (or if CloudFish did not make a settlement offer before
an arbitrator was selected), then CloudFish will pay you the amount of the
award or US$1,000, whichever is greater. Except as expressly set forth herein,
the payment of all filing, administration and arbitrator fees will be governed
by the AAA Rules.
YOU AND CLOUDFISH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE
OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS
MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless
both you and CloudFish agree otherwise, the arbitrator may not consolidate more
than one person's claims with your claims, and may not otherwise preside over
any form of a representative or class proceeding. If this specific provision is
found to be unenforceable, then the entirety of this arbitration provision
shall be null and void. The arbitrator may award declaratory or injunctive
relief only in favor of the individual party seeking relief and only to the
extent necessary to provide relief warranted by that party's individual claim.
General
Following the requirements of 47 U.S.C. Section 230(d), as
amended, we hereby notify you that parental control protections are
commercially available that may assist you in limiting access to material that
is harmful to minors. For more information on how to obtain such protections
see GetNetWise (http://kids.getnetwise.org/) and OnGuard Online (http://onguardonline.gov/).
CloudFish does not endorse any particular provider or service that enables
parental controls. Neither these Terms nor any rights or obligations of you
hereunder may be assigned by you in whole or in part without the prior written
approval of CloudFish. Any assignment in violation of the foregoing shall be
null and void. If any part of these Terms is for any reason found to be
invalid, illegal or unenforceable, all other parts nevertheless remain valid,
legal and enforceable. In lieu of the unenforceable provision, the parties
agree that the court should attempt effect as much as possible the economic,
legal and business objectives as were intended by the unenforceable provision. CloudFish's
failure to act with respect to a breach by you or others does not waive CloudFish's
right to act with respect to subsequent or similar breaches. CloudFish shall
not be liable for any delay in the performance hereunder due to causes beyond
its control, including but not limited to an act of God, war or natural
disaster. These Terms set forth the entire understanding and complete and
exclusive statement of the agreement between CloudFish and you and they
supersede any proposal or prior agreement, oral or written, and any other
communications between the parties in relation to the subject matter of these
Terms. You have no third party beneficiaries to these Terms.
Website Terms of Use
These Website Terms of Use (the ˝Visitor Terms˝) apply
to your use of the Service and CloudFish websites (collectively, the
˝Site˝). CloudFish reserves the right to change the Visitor Terms and
to modify and/or limit access to the Site at any time without notice to you. By
using or accessing the Site, you agree to be bound by the most recent Visitor
Terms.
Site Content
All content that is made available to view and/or download in
connection with the Site is the copyrighted work of and is owned by CloudFish
and/or its licensors or subscribers, as applicable, and is protected by
copyright and other laws and international treaty provisions. You may not copy,
modify, publish, transmit, participate in the transfer or sale, create
derivative works, or in any way exploit, any such content without the express
written permission of CloudFish and the copyright owner. You may not frame or
otherwise include the Site within any other website or software.
Linked Sites
The Site may contain links to third party web sites ("Linked
Sites"). These Linked Sites are not under the control of CloudFish and CloudFish
is not responsible for the availability, contents, or performance of any Linked
Sites. CloudFish is providing these links to you only as a convenience, and the
inclusion of any link does not imply endorsement by CloudFish of the Linked
Site or any association with its operators. You are responsible for viewing and
abiding by the privacy statements and terms of use posted at the Linked Sites.
You should direct any concerns regarding these third-party sites to those
sites' administrators.
Trademarks
"CloudFish," and the CloudFish logo are trademarks of CloudFish
and are protected by law. All other names of companies and products mentioned
may be trademarks of their respective owners. You may not copy, display or use
any of these marks without prior written permission of the mark owner.
Additional Terms
You agree to abide by the CloudFish Terms of Use, the most current
terms of which are incorporated herein by reference.
Last updated May 15, 2016
Copyright Policy
CloudFish respects the intellectual property of others, and we
expect our users to do the same. CloudFish may suspend and/or terminate the
accounts of users who infringe the rights of others. If you believe that your
copyrights or other intellectual property rights have been infringed by
postings of others through the CloudFish service, you should provide CloudFish's
copyright agent with the following information:
CloudFish's agent for notice of claims of copyright or other
intellectual property infringement can be reached as follows:
By mail:
Copyright Agent
CloudFish LLC
2972 Webb Bridge Road Alpharetta, GA 30009
By email: info@CloudFish.com