We, GarbleCloud, Inc. a Delaware corporation (collectively, with our parents, affiliates, subsidiaries and related companies, “GarbleCloud,” “we,” “our,” or “us” offer a platform that enables a seamless, aggregated view of your files and data across different cloud file storage and back-up services, along with file encryption to protect sensitive files, secure encryption key management and integrated search (the “Service”). You may access our Service from GarbleCloud web-application (the “Site”) and the GarbleCloud mobile application(s)(the “App”).
Before you proceed, please read the following Terms of Service (“Terms”) carefully as they contain the legal terms and conditions that you agree to when you use our Service and/or access the Site and the App (collectively, “Platform”) to use our Service.
References to “you” and “your” is construed to mean you as the customer of GarbleCloud (the “User”). By accessing or using our Service and/or Platform, or authorizing or permitting any User or End-User to access or use the Service and/or Platform through websites, or mobile applications, you agree to be bound by these terms. If you are entering into these terms on behalf of a company, organization or another legal entity (an “Entity”), you are agreeing to these terms for that entity and representing to us that you have the authority to bind such entity and its affiliates to these terms, in which case the terms, “you,” “your” or related pronouns used herein shall refer to such Entity and its Affiliates.
IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT ACCESS OR USE OUR SERVICE OR PLATFORM.
IN ORDER TO ACCESS OUR SERVICE, YOU WILL HAVE TO CREATE AN ACCOUNT ON THE PLATFORM AND YOU WILL BE REQUIRED TO CLICK ON THE “I ACCEPT” BUTTON SET FORTH AT THE END OF THESE TERMS. YOU ALSO ACKNOWLEDGE THAT YOUR SUBMISSION OF THE CREDIT CARD PAYMENT FORM SERVES AS YOUR AGREEMENT TO THESE TERMS.
THESE TERMS CONTAIN A MANDATORY AND BINDING CUSTOMER ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON A CUSTOMER BASIS, TO RESOLVE DISPUTES, RATHER THAN JURY TRIAL OR CLASS ACTION.
Our Service and Platform are available for use wherever legally allowed. Users are required to ensure that they are legally able to use our services and if not, cease using them immediately.
You, as an individual, must be 18 years or older, and must be capable of forming a legally binding agreement and must not be barred from receiving services under the laws of the United States or other applicable jurisdiction in order to access and/or use our Service and access and/or use our Platform.
5. ACCESSING OUR PLATFORM AND SERVICE
5.1. Registration. In order to Register for our Service through our Platform, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (“User Data”) and (b) maintain and promptly update the User Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, you may not be able to completely enjoy our Platform or Service and we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
5.2. Amendment of Terms. You agree that GarbleCloud retains the right to amend these Terms, Service, and Platform, including service offerings and prices at any time, for any reason. If we make any changes, modifications, or amendments to the Terms, Service, and Platform, such modifications shall be binding on you only upon your acceptance of the modified Terms. We will inform you about the modifications via email or comparable means 15 days before such modifications take effect. We will also post the modifications here and on this page. Continued use of our Service and/or Platform after any such changes shall constitute your consent to such changes.
5.3. Access and Use Rights. GarbleCloud grants you a personal, limited, revocable, non-exclusive and non-transferable right to access and use the Platform and Service. These rights are exclusive to you and you may not sub-license the use of Platform and Service. GarbleCloud expressly retains all ownership rights, title and interest in and to all aspects of the Platform and the Service, including, but not limited to, all current and future patents, copyrights, trademarks, trade secrets, know-how, and other proprietary rights included or embodied in the Platform. You may not modify the Site nor the App, create derivative works of the Site or the App, or reverse engineer, reverse compile, reverse assemble or do any other operation with the Site or the App that would reveal any source code, trade secrets, know-how or other proprietary information. These rights shall not be construed or interpreted as granting or providing rights to you to use, reproduce, modify, distribute, perform, display, possess or control the source code or any other aspect of the Site or the App. You may not remove or modify any notice of confidentiality, trade secret, trademark or copyright encoded or embodied in the Site or displayed by, on, or in the Site. You may use the Site and the App only while these Terms remain in effect. Under no circumstances shall you have any rights of any kind in or to the Site or the App after any termination or expiration of your agreement to these Terms for any reason.
5.4. Beta Services. We sometimes release products and features that we are still testing and evaluating. Those Services have been marked beta, preview, early access, or evaluation (or with words or phrases with similar meanings) and may not be as reliable as other services. In addition, while we do use AES-256 bit encryption to encrypt user-files, the process of uploading files to GarbleCloud servers could result in files getting corrupted during their storage in the target cloud filestores (Google Drive or Dropbox). This might on very rare occasions, render the encrypted file(s) un-decryptable. Alternately, on rare occasions, the encryption-key might get corrupted or deleted due to unforeseen circumstances rendering the file(s) irretrievable.
5.5. Your Content.
(i) GarbleCloud does not claim ownership rights in any information, data, text, software, music, sound, photographs, graphics, video, messages, or other materials or content you make available or use in connection with the Site and the Service or use in connection with your account (the “User Content”). You remain the owner of all Content that you submit to the Service and as a condition to your use of the Site and the Service, you represent and warrant to GarbleCloud that you are the owner of the copyright to the Content you submit to the Service or that you have written permission from the copyright owner to submit such Content. You agree to indemnify and hold GarbleCloud harmless for any violation of this section.
(ii) The copyright in the User Content that you upload belongs to you, and GarbleCloud does not claim any ownership or license rights in or to any User Content, and will not use any User Content except as set forth in this Agreement.
User Content that you upload via the site should be in accordance with the following and subject to the following limitation:
i. Any threatening, obscene, pornographic or profane material or any other material that could give rise to any civil or criminal liability under applicable law;
ii. Any material that could infringe rights of privacy, publicity or copyrights without the permission of the owner of these rights and the persons (or their parents or legal guardians, where applicable) whose likenesses are displayed in the material; or
iii. Any material sent from an anonymous or false address.
PLEASE NOTE, GarbleCloud does not and cannot review all material on the Site, and is not responsible for its content. However, GarbleCloud reserves the right to remove, delete, move, or edit User Content that it, in its sole discretion, deems abusive, defamatory, obscene, in violation of the law, including but not limited to copyright or trademark law, or otherwise unacceptable. GarbleCloud will not be liable for the User Content of any submission. You agree to indemnify and hold GarbleCloud harmless for any violation of this provision.
6. PRICING AND PAYMENT.
The Service is a free service with limitation on features and functions which are defined on the Site, (the “Free Service”).
7. THIRD PARTY SOFTWARE AND LINKING
In providing you the Service, we will make software, hyperlinks, and other products of third-party companies available to you, your use of such products is subject to the respective terms and conditions imposed by the third party owning, manufacturing or distributing such products, and the agreement for your use will be between you and such third-party. GarbleCloud makes no warranty with regard to the products or website of any other entity. GarbleCloud has no control over the content or availability of any third-party software or website. In particular (a) GarbleCloud makes no warranty that any third-party software you download or website you visit will be free of any contaminating or destructive code, such as viruses, worms or Trojan horses; (b) GarbleCloud makes no warranty regarding your third-party cloud back-up services that you will integrate to use our Service; and (c) GarbleCloud notifies you that it is your responsibility to become familiar with any website’s privacy and other policies and terms of service, and to contact that site’s webmaster or site administrator with any concerns including those of your third-party cloud back-up services.
8. MONITORING OF CONTENT
You acknowledge, consent and agree that GarbleCloud may access, preserve, and disclose your account information and Use Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of GarbleCloud, its users and the public.
9. SUSPENSION AND TERMINATION OF ACCESS AND MEMBERSHIP AND EFFECT OF TERMINATION
9.1. Suspension and Termination.
GarbleCloud reserves the right to suspend or terminate your account and use of the Site, at any time, without notice, for any reason, including but not limited to the following:
(i) Breach of these Terms, including policies or guidelines set forth by GarbleCloud elsewhere;
(ii)Conduct that GarbleCloud believes is harmful to other users of the Service or the business of GarbleCloud or other third party information providers (including excessive file transfers which affect the performance of the GarbleCloud servers).
Further, you agree that GarbleCloud shall not be liable to you or any third party for any termination of your access to the Site. GarbleCloud reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that GarbleCloud shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
9.2. Procedure. You may terminate your account and discontinue the use of the Platform and Service by sending a written notice to us at email@example.com and include in the subject line the following: “Re: Termination of Service”. Your account will be terminated with 10 days of GarbleCloud receiving the notice of Termination of Service.
9.3. Effect of Termination. Upon receiving such notice, or upon our determination of termination of your access to our Platform and Service, we will send you the acceptance of the notice of Termination. Thereafter, your access to our Platform and Service will terminate on the fifth day from your receiving our confirmation. If applicable, all your User Content will be returned to you before such Termination.
10. DISCLAIMER OF THIRD-PARTY ACTIONS
You acknowledge that GarbleCloud does not and cannot control the flow of data to or from the Service or within any portion of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third-parties can impair or disrupt your connections to the Internet (or portions thereof). Although GarbleCloud will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events with respect to your use of the Service, GarbleCloud cannot guarantee that such events will not occur. Accordingly, GarbleCloud disclaims any and all liability resulting from, or related to, such events.
11. REPRESENTATIONS AND WARRANTIES BY YOU
Your understand and acknowledges that all of your rights to use and access the third party services, sites and materials and receive data arise from the third parties’ services and applicable agreements to which you must agree (“Third Party Agreements”). Accordingly, you represent and warrant that: (a) that you shall comply with and shall not violate any Third Party Agreements; and (b) that you will not violate any applicable law or regulation, or cause a breach of any agreement with any third party, in connection with the performance of its obligations and use of the Services. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, GarbleCloud shall have the right to immediately suspend any of the Services in order to prevent harm to GarbleCloud or its business and to limit any potential liability. If practicable, GarbleCloud may provide notice and opportunity to cure. Once cured, in GarbleCloud’s discretion, GarbleCloud will use reasonable efforts promptly restore the Services. You agree to indemnify and hold GarbleCloud harmless for any liability arising from or related to your breach of the foregoing warranties.
12. DISCLAIMER OF WARRANTY
THE SERVICE AVAILABLE THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, GARBLECLOUD MAKES NO WARRANTY THAT THE SITE OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, THAT THE SITE OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE SITE, INCLUDING THE SERVICE WILL BE AVAILABLE, OR THAT DATA ARE SECURE FROM UNAUTHORIZED ACCESS. GARBLECLOUD MAKES NO WARRANTY REGARDING ANY SOFTWARE, GOODS, SERVICE, PROMOTIONS, OR THE DELIVERY OF ANY GOODS OR SERVICE, PURCHASED, ACCESSED OR OBTAINED THROUGH THE SITE OR ADVERTISED THROUGH THE SITE. NO ADVICE OR INFORMATION GIVEN BY GARBLECLOUD, ITS EMPLOYEES OR AFFILIATES SHALL CREATE A WARRANTY. IN ADDITION, GARBLECLOUD DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE PLATFORM IS ACCURATE, COMPLETE OR CURRENT OR WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.
13. RULES OF CONDUCT
13.1. The following Rules of Conduct apply to the access and/or use of our Platform and/or Service. By using/accessing our Platform and/or Service, you agree that you will not distribute any Content that:
i) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; is bigoted, hateful, or racially or otherwise offensive; is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or otherwise harms or can reasonably be expected to harm any person or entity;
ii) is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including a submission that is, or represents an attempt to engage in, child pornography, stalking, sexual assault, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity;
iii) infringes or violates any right of a third party including: (i) copyright, patent, trademark, trade secret or other proprietary or contractual rights; (ii) right of privacy (specifically, you must not distribute another person’s personal information of any kind without their express permission) or publicity; or (iii) any confidentiality obligation;
iv) is commercial, business-related or advertises or offers to sell any products, services or otherwise (whether or not for profit), or solicits others (including solicitations for contributions or donations);
v) contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Site or any connected network, or otherwise interferes with any person or entity’s use or enjoyment of Platform;
vi) does not generally pertain to the designated topic or theme of Platform;
vii)violates any specific restrictions applicable to a public forum, including its age restrictions and procedures; or
viii) is antisocial, disruptive, or destructive, including “flaming,” “spamming,” “flooding,” “trolling,” and “griefing” as those terms are commonly understood and used on the Internet.
13.2. You expressly agree that you are solely responsible for any and all acts and omissions that occur under your account or password, and you agree not to engage in any unacceptable uses of the Service, which include, without limitation, use of the Service and/or Platform to:
ii) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Site or any other computer network;
iii) use Platform or the Service in connection with any commercial endeavors;
iv) post your personal information such as instant messaging addresses, personal URLs, physical addresses and phone numbers in any publicly viewable areas of the Platform;
v) post or give out any financial information or transmit electronically or physically any money to other Users;
vi) create user accounts by automated means or under fraudulent or false pretenses;
vii) create or transmit unsolicited electronic communications such as spam to Users or promote any products or services;
viii) submit or upload any type of material that is unlawful, harmful, hateful, threatening, abusive, harassing, defamatory, offensive, obscene, pornographic, lewd, lascivious, or otherwise objectionable, as determined by GarbleCloud;
ix) submit or upload any content for which you do not own all applicable rights or that infringes the proprietary rights of other parties;
x) submit, engage in or upload any type of competitions or content that can cause physical or mental harm to the participants or visitors to Platform;
xi) harass, threaten or intentionally embarrass or cause harm or distress to another person or group;
xii) collect and publish any information about any of our Users;
xiii) adapt, modify or reverse engineer any portion of the Service or the Platform;
xiv) use any spider, robot, retrieval application, or any other device to retrieve any portion of the Platform;
xv) reformat any of the pages that are part of the Platform;
xvi) disseminate, store or transmit viruses, worms, Trojan horses or other malicious code or program;
xvii) encourage conduct that would constitute a criminal or civil offense;
xviii) violate any applicable federal, state, local or international law or regulation;
xix) exploit children under 18 years of age;
xx) invade the privacy of any person, including but not limited to submitting personally identifying or otherwise private information about a person without their consent (or their parent’s consent in the case of a child under 13 years of age);
xxi) solicit personal information from a child under 13 years of age;
xxii) submit false or misleading information to GarbleCloud, the Platform, Service, or other Users; or
We cannot and do not assure that other Users are or will comply with the foregoing rules of conduct or any other provisions of these Terms, and, as between you and us, you hereby assume all risk of harm or injury resulting from any such lack of compliance.
14. COPYRIGHT, OTHER PROPRIETARY AND PRIVACY PROTECTION FOR OTHERS USER’S CONTENT ON THE SITE
GarbleCloud hereby notifies you that all of the information, content, image files, software and materials on the Site may be protected by U.S. and international copyright and other intellectual property laws, including privacy laws. You understand that GarbleCloud is unable to provide you with permission to copy, display, or distribute material for which you do not own the copyright or other intellectual property rights. You may not copy or distribute such material without the written consent of the owner, and you are solely responsible for any copyright or other intellectual property law violations that you may incur as a result of your activities on the Site. GarbleCloud has the absolute right to terminate your account or exclude you from any Site if you use our Service to violate the intellectual property rights or other rights of third parties. You agree to indemnify and hold GarbleCloud harmless for any violation of this provision.
15.CLAIMS OF COPYRIGHT INFRINGEMENT
15.1 We have adopted and implemented a policy that provides for the termination, in appropriate circumstances as determined by us in our sole discretion, of Users who are infringers of copyright. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement must be sent to the service provider’s designated agent. Notification must be submitted to the following: Service Provider: Garblecloud Name: Chief Legal Officer, Garblecloud Email: firstname.lastname@example.org
15.2 To be effective, the notification must be a written communication that includes the following:
i. A physical or electronic signature of person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
iv. Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
v. A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
15.3 We may give you notice that we have removed or disabled access to certain material by means of a general notice on Platform, or via electronic mail to a User’s e-mail address in our records. If you receive such a notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:
i. Your physical or electronic signature;
ii. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
iii. A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
iv. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which GarbleCloud may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
16.LIMITATION OF LIABILITY
16.1 YOU ACKNOWLEDGE, BY YOUR USE OF ANY OF THE SITE OR SERVICE, THAT YOUR USE OF THE SITE OR SERVICE AND ANY RELIANCE UPON EITHER IS AT YOUR SOLE RISK, THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH YOUR USE OF THE PLATFORM OR SERVICE. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL GARBLECLOUD BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, IMAGES, DATA OR OTHER INTANGIBLES, EVEN IF GARBLECLOUD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THAT RESULT FROM THE USE OR THE INABILITY TO USE THE SITE OR THE SERVICE, FROM ANY CHANGES TO THE SITE OR THE SERVICE OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. YOU SPECIFICALLY ACKNOWLEDGE THAT DOWN-TIME AND COMPUTER VIRUSES ARE RISKS INHERENT IN THE USE OF THE INTERNET AND SOFTWARE PRODUCTS, AND YOU AGREE TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM THESE POSSIBLE HARMS. YOU ALSO SPECIFICALLY ACKNOWLEDGE THAT YOU MAY BE DISCLOSING SENSITIVE, PRIVATE AND CONFIDENTIAL INFORMATION ABOUT YOURSELF IN YOUR USE OF THE SITE AND THE SERVICE AND YOU AGREE TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM YOUR RELEASE OF SUCH CONTENT.
16.2 IF YOU ARE DISSATISFIED WITH THE PLATFORM OR THE SERVICE OR WITH ANY OF THESE TERMS, OR FEEL GARBLECLOUD HAS BREACHED THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE AND THE SERVICE. YOU MAY SEND US A NOTICE OF TERMINATION AS MENTIONED IN SECTION 9, ABOVE. THE TOTAL LIABILITY OF GARBLECLOUD TO YOU FOR ANY CLAIM ARISING FROM OR RELATING TO THESE TERMS OR USE OF THE SITE OR THE SERVICE SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICE. IT IS THE INTENTION OF YOU AND GARBLECLOUD THAT THIS PROVISION BE CONSTRUED BY A COURT AS BEING THE BROADEST LIMITATION OF LIABILITY CONSISTENT WITH APPLICABLE LAW.
16.3 SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
17.1. Governing Law
This Agreement shall be governed by the law of the State of California, without respect to its conflicts of laws principles. We each agree to submit to the personal jurisdiction of a state or federal court located in Riverside ,California, for any actions not subject to Dispute Resolution and Arbitration provisions as set forth in Section
17.2. Dispute Resolution and Binding Arbitration
i) Disputes. Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and GarbleCloud agree (a) to waive your and GarbleCloud’s respective rights to have any and all Disputes arising from or related to this Agreement, use of our Service and Platform, resolved in a court, and (b) to waive your and GarbleCloud’s respective rights to a jury trial. Instead, you and GarbleCloud agree to arbitrate disputes through binding arbitration(which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
ii)No Class Arbitrations, Class Actions or Representative Actions. You and GarbleCloud agree that any Dispute arising out of or related to these Terms or the Platform is personal to you and GarbleCloud and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and GarbleCloud agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and GarbleCloud agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
iii) Federal Arbitration Act. You and GarbleCloud agree that these Terms affect interstate commerce and that the enforceability of this Section 17.2 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. Â§ 1 et seq. (the âFAAâ), to the maximum extent permitted by applicable law.
iv) Notice; Informal Dispute Resolution.
You and GarbleCloud agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to GarbleCloud shall be sent by certified mail or courier to GarbleCloud, Inc., Attn:[ADDRESS]. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your GarbleCloud account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with this Agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and GarbleCloud cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or GarbleCloud may, as appropriate and in accordance with this Section 17.2, commence an arbitration proceeding.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND GARBLECLOUDS AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR GARBLECLOUDS WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND GARBLECLOUDS WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and GarbleCloud agree that (a) any arbitration will occur in Riverside, California (b) arbitration will be conducted confidentially by a single arbitrator 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, and (c) that the state or federal courts of the State of California, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
vi) Authority of Arbitrator.
As limited by the FAA, these Terms and the applicable AAA rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. Notwithstanding anything to the contrary herein or the applicable AAA rules. discovery in the arbitration shall be limited to one set of interrogatories, one set of request for admissions, and one set of request for production of documents. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and 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 attorney’s fees and expenses, to the extent provided under applicable law. We will not seek, and hereby waives all rights it may have under applicable law to recover, attorney’s fees and expenses if it prevails in arbitration.
vii) Rules of AAA.
The AAA Rules are available at www.adr.org/arb_medor by calling the AAA at 1-800-778-7879. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of AAA, or (b) waive your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason.
viii) Opt-Out Right.
YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST ACCEPTED THE TERMS OF THIS SECTION 17.2 BY WRITING TO: GARBLECLOUDS, INC., RE: OPT-OUT. IN ORDER TO BE EFFECTIVE, THE OPT OUT NOTICE MUST INCLUDE YOUR FULL NAME AND CLEARLY INDICATE YOUR INTENT TO OPT OUT OF BINDING ARBITRATION. BY OPTING OUT OF BINDING ARBITRATION, YOU ARE AGREEING TO RESOLVE DISPUTES IN ACCORDANCE WITH SECTION 17.2.
17.3. No Resale of Services
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
17.4 Force Majeure
GarbleCloud will not be liable by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond GarbleCloud’s reasonable control.
The failure of GarbleCloud to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by GarbleCloud in writing.
The headings of Sections of these Terms are for convenience and are not to be used in interpretation.
If any term, clause or provision of Section 17.2 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 17.2 will remain valid and enforceable. Further, the waivers set forth in Section 17.2(b) are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
17.8. Entire Agreement
These Terms constitute the entire agreement between you and GarbleCloud and govern your use of the Platform and the Service, superseding any prior agreements between you and GarbleCloud. The failure of GarbleCloud to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you and GarbleCloud nevertheless agree that the court should endeavor to give effect to the parties intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect.