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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
"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.
Last updated May 15, 2016
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:
2972 Webb Bridge Road Alpharetta, GA 30009
By email: info@CloudFish.com