TERMS OF USE OF SAND CLOUD HOLDINGS LLC
Last Updated: May 15, 2018
IMPORTANT DISCLAIMERS. ALL INFORMATION CONTAINED ON THIS WEBSITE AND THE SERVICES PROVIDED HEREIN ARE FOR INFORMATIONAL PURPOSES ONLY. CONTENT POSTED BY SAND CLOUD HOLDINGS LLC (hereinafter “Sand Cloud” or “Company”) ON ANY WEBSITE, MOBILE APPLICATION, SOCIAL MEDIA CHANNEL, THIRD-PARTY CONTENT SERVICE, OR ADVERTISEMENT IS FOR INFORMATIONAL PURPOSES ONLY. SAND CLOUD DOES NOT ENDORSE, AND IS NOT RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF, ANY OPINION, ADVICE, STATEMENT, OR OTHER INFORMATION MADPUE ON THE SITE OR SERVICES, INCLUDING USER CONTENT AND THIRD PARTY MATERIALS (EACH AS DEFINED BELOW). SAND CLOUD IS NOT RESPONSIBLE FOR YOUR RELATIONSHIP WITH ANY USERS OF THE SITE OR SERVICES PROVIDED HEREIN. SAND CLOUD IS NOT OBLIGATED TO SCREEN RETAILERS OR DISTRIBUTORS, RETAIL LOCATIONS, OR THEIR PRODUCTS TO DETERMINE WHETHER THEY ARE QUALIFIED OR AUTHORIZED BY LAW TO PROVIDE THEIR SERVICES OR TO DETERMINE THE ACCURACY OF THEIR PRODUCTS OR OTHER INFORMATION THEY PROVIDE.
THE FOREGOING DISCLAIMERS AND LIMITATIONS ON LIABILITY SHALL NOT LIMIT THE MORE GENERAL DISCLAIMERS AND LIMITATIONS ON LIABILITY IN SECTION 12 OR ELSEWHERE IN THIS AGREEMENT.
THIRD PARTY DISTRIBUTION. Sand Cloud is selling third party products on this website. Sand Cloud cannot and will not make any claims regarding any other products sold on this website. Sand Cloud therefore disclaims, and you agree to waive to the fullest extent of the law, any liability which may result from your use of the products sold through this website. If you have questions about any product sold on this website please contact the Sand Cloud customer service team prior to purchase. Sand Cloud will also refer you to the provider of these products for additional information or questions.
BINDING EFFECT. This is a binding agreement. By using the Internet site located at www.sandcloud.com including any sub-links or sub-pages, (the “Site”), or any products or Services provided in connection with the Site (the “Services” and the “Product(s)”), you agree to abide by these Terms of Use, as they may be amended by San Cloud from time to time in its sole discretion, with or without notice. Company may, in its sole and absolute discretion, change these Terms of Use and Privacy Policy, as well as all other applicable terms, conditions, limitations and requirements on the Site, without notice to you. If any change to these terms is found invalid, void, or for any reason unenforceable, that change is severable and does not affect the validity and enforceability of any remaining changes or conditions. YOUR CONTINUED PARTICIPATION OR USE OF THIS SITE OR THE PRODUCTS AFTER COMPANY CHANGES THESE TERMS CONSTITUTES YOUR ACCEPTANCE OF THE CHANGES. IF YOU DO NOT AGREE TO ANY CHANGES IN THE TERMS, YOU MUST DISCONTINUE YOUR USE AND ACCESS OF THE SITE AND CANCEL ANY SUBSCRIPTIONS YOU ARE CURRENTLY PARTICIPATING IN. Company will post a notice on the Site any time these Terms of Use have been changed or have otherwise been updated. It is your responsibility to review these Terms of Use periodically, and if at any time you find Company’s Terms of Use unacceptable, you must immediately leave the Site and cease all use of the Site. BY ACCESSING, BROWSING, OR USING THIS SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, ACCEPTED, AND AGREED TO THESE TERMS OF USE WITHOUT LIMITATION OR QUALIFICATION. YOU AGREE THAT BY USING THE PRODUCTS OR SERVICES YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD AND THAT YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF USE, PLEASE DO NOT ACCESS, BROWSE OR USE THIS SITE OR THE CONTENT OR USE THE PRODUCTS AND SERVICES HEREON.
You must be 18 years of age or over, or the legal age to form a binding contract in your jurisdiction if that age is greater than 18 years of age, to open an account or register for or use any function, service, or portion of this Site which requires such registration. This Site is not intended or designed to attract children under the age of 13. If you are under the age of 13, you may not use the Site. If you are a minor age between the ages of 13 and 18 (or the applicable legal age in your jurisdiction), you can use such functions or services only in conjunction with, and under the supervision of, your parent or guardian who has agreed to these Terms of Use. If you are a parent or legal guardian agreeing to these Terms of Use for the benefit of a minor between the ages of 13 and 18 (or the applicable legal age in your jurisdiction), you are fully responsible for his or her use of the Site and the User Content (as defined below), including all legal liability he or she may incur. By using this Site and any services provided therein, you represent and warrant that you have the right, authority, and capacity to enter into these Terms of Use and to abide by all of the terms and conditions set forth herein.
PRIVACY POLICY. Company respects your privacy and permits you to control the treatment of your personal information. A complete statement of Company’s current Privacy Policy can be found by clicking here www.sandcloud.com/pages/privacy-policy. Company’s Privacy Policy is expressly incorporated into this Agreement by this reference.
When you are required to open an account to use or access the Site or Service, you must complete the registration process by providing the complete and accurate information requested on the registration form. You may also be asked to provide a user name and password. You are entirely responsible for maintaining the confidentiality of your password. You may not use the account, username, or password of someone else at any time. You agree to notify Company immediately of any unauthorized use of your account, user name, or password. Company shall not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by Company, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your account or password.
USE OF SOFTWARE. Company may make certain Software available to you from the Site. Software is defined as any programs, applications or other operating information that is utilized by a computer. If you download Software from the Site, the Software, including all files and images contained in, or generated by, the Software, and accompanying data (collectively, “Software”) are deemed to be licensed to you, on a non-exclusive, limited and conditional basis, by Company, for your personal, noncommercial, home use only. Company does not transfer either the title or the intellectual property rights to the Software, and Company retains full and complete title to the Software as well as all intellectual property rights contained therein. You may not sell, redistribute, or reproduce the Software, nor may you decompile, reverse-engineer, disassemble, or otherwise convert the Software to a human-perceivable form. All trademarks and logos are owned by Company or its licensors and you may not copy or use them in any manner.
USER CONTENT. You grant Company a license to use the materials you post to the Site or any third-party website, including any social media websites, channels and platforms. By posting, downloading, displaying, performing, transmitting, or otherwise distributing third-party information or other third-party content (“User Content”) to the Site or Service, including any third-party public websites or social media websites, channels and platforms, you are granting Company, its affiliates, officers, directors, employees, consultants, agents, and representatives a license to use the User Content in connection with the operation of the business of Company, its affiliates, officers, directors, employees, consultants, agents, and representatives, including without limitation, a right to copy, distribute (through any means or methods whether now known or hereafter to become known), modify, create derivative works of, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat the User Content. You will not be compensated for any of Company’s use of the User Content. You agree that Company may publish or otherwise disclose your name in connection with your User Content. By posting User Content on the Site or Service, you warrant and represent that you own the rights to the User Content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute the User Content.
COMPLIANCE WITH INTELLECTUAL PROPERTY LAWS. When accessing the Site or using the Service, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Service and the Site is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content (collectively, “Content”) in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights, including, without limitation, the right of privacy and publicity. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any Content you provide or transmit, or that is provided or transmitted using your account. The burden of proving that any Content does not violate any laws or third party rights rests solely with you.
INAPPROPRIATE CONTENT. You shall not make the following types of Content available, and you agree not to upload, download, display, perform, transmit, link to or otherwise distribute any Content that (a) is libelous, defamatory, obscene, offensive, pornographic, abusive, threatening, unlawful, fraudulent, harmful, harassing, tortious, vulgar, that may be invasive or in violation of another's right of privacy or publicity, hateful, racially, ethnically or otherwise objectionable as determined by us in our sole discretion; (b) advocates or encourages conduct that could constitute a criminal offense, give rise to civil or criminal liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; (c) advertises or otherwise solicits funds or is a solicitation for goods or services; (d) distributes or facilitates the distribution of viruses, corrupted data, trojan horses, bots, keystroke loggers, worms, time bombs, cancelbots or other computer programming routines or computer code that are intended to and/or actually damage, detrimentally interfere with, surreptitiously intercept or mine, obtain unauthorized access to, scrape or expropriate any system, software, data or personal information; (e) adversely affects the availability of Site resources to other users (e.g., excessive shouting (use of all caps), flooding (continuous posting of repetitive text) or excessively large embedded images); (f) solicits or disseminates surveys (other than any such functionality expressly provided for by the Site that otherwise complies with these Terms of Use), contests, pyramid schemes, chain letters, junk mail, spam, or unsolicited messages; (g) creates a false identity for the purpose of misleading others, to be determined in our sole discretion; (h) transmits or facilitates the transmission of any content to an e-mail address, social media account, messenger-feature address or other location that is not yours or to which you do not have the expressly authorized right to use without securing the prior authorization of the owner or licensor of such other address or other location; and (i) transmits or facilitates the transmission of any User Content that infringes any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary, statutory, common law or other rights of any party.
COPYRIGHT INFRINGEMENT. Company has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Site or associated with the Service. Company will respond to notices of alleged copyright or other intellectual property infringement that comply with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws. In addition, you agree that, in the event Company receives a written demand from a third party alleging that any User Content infringes upon, dilutes, tarnishes or otherwise violates its trademark or trade secret rights, Company may in its sole discretion, remove or disable access to such User Content.
If you are a copyright owner, or an agent thereof, and believe that any of the content on this Site infringes upon your copyrights or other intellectual property right, pursuant to the DMCA, you may submit a notification by providing our Copyright Agent (contact information below) with the following information:
- A physical or electronic signature of the copyright, or other intellectual property right, owner (or someone authorized to act on behalf of the owner);
- Identification of the protected work and intellectual property right (i.e., copyright or trademark) claimed to have been infringed, or, if multiple protected works are covered by a single notification, a representative list of such works;
- Identification and location 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 Company to locate the material;
- Information reasonably sufficient to permit Company to contact you, such as an address, telephone number, and, if available, an electronic mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright or other intellectual property right owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the information in the notification is accurate, and that you are authorized to act on behalf of the intellectual property right owner of the right that is allegedly infringed.
You acknowledge that if you fail to comply with the procedures provided in this subsection for reporting a claimed copyright infringement, your notice may not be valid under the DMCA. See 17 U.S.C. 512(c)(3) for further details.
With respect to content that was taken down due to a copyright infringement claim, if you believe that your content that was removed (or access was disabled to) is not copyright infringing, or that you have authorization from the rightful copyright owner, the copyright owner's agent, or pursuant to law, to post and use the allegedly infringing material in your posted content, you may send a counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature;
- Identification or description of the material that has been removed or to which access has been disabled and the original location where the material appeared before it was removed or disabled;
- A statement by you, made under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material removed or disabled; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the U.S. District Court for the Southern District of California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Company may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the material provider, member or user, the removed material may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Company’s sole discretion. See 17 U.S.C. 512(g)(3) for further details.
Company’s Copyright Agent (the "Copyright Agent") will receive notifications of claimed infringement and counter-notices at 4629 Cass Street, Suite 52, San Diego, CA 92109 or via email at operations@sandcloud.com. This e-mail address is intended solely for the receipt of legal "Notifications of Claimed Infringement" under the DMCA.
In an effort to protect the rights of intellectual property owners, Company maintains a policy for the termination, in appropriate circumstances, of user accounts of this Site who repeatedly infringe the copyright and other intellectual property rights of others.
ALLEGED VIOLATIONS. Company reserves the right to terminate your use of the Service and/or the Website. To ensure that Company provides a high quality experience for you and for other users of the Site and the Service, you agree that Company or its representatives may access your account and records on a case-by-case basis to investigate complaints or allegations of abuse, infringement of third party rights, or other unauthorized uses of the Site or the Service. Company does not intend to disclose the existence or occurrence of such an investigation unless required by law, but Company reserves the right to terminate your account or your access to the Site immediately, with or without notice to you, and without liability to you, if Company believes that you have violated any of the Terms of Use, furnished Company with false or misleading information, or interfered with use of the Site or the Service by others.
AFFILIATED SITES. Company has no control over, and no liability for any third party websites or materials. Company works with a number of partners and affiliates whose Internet sites may be linked with the Site. Because neither Company nor the Site has control over the content and performance of these partner and affiliate sites, Company makes no guarantees about the accuracy, currency, content, or quality of the information provided by such sites, and Company assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those sites. Similarly, from time to time in connection with your use of the Site, you may have access to content items (including, but not limited to, websites) that are owned by third parties. You acknowledge and agree that Company makes no guarantees about, and assumes no responsibility for, the accuracy, currency, content, or quality of this third party content, and that, unless expressly provided otherwise, these Terms of Use shall govern your use of any and all third party content.
PROHIBITED USES. Company imposes certain restrictions on your permissible use of the Site and the Service. You are prohibited from violating or attempting to violate any security features of the Site or Service, including, without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Service, the Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site or Service, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;” (d) using the Site or Service to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (e) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Service; or (f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Company in providing the Site or Service. Any violation of system or network security may subject you to civil and/or criminal liability.
USER CONTRIBUTIONS. The Site may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, and other interactive features (collectively, "Interactive Services") that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, "post") content or materials (collectively, "User Contributions") on or through the Site. All User Contributions must comply with the content standards set out in these Terms of Use.
Any User Contribution you post to the Site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Site, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose.
You represent and warrant that:
- You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns.
- All of your User Contributions do and will comply with these Terms of Use.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness. We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Site. You agree to cooperate and to provide Company with all documentation reasonably requested relating to your account.
RELIANCE ON INFORMATION POSTED. The information presented on or through the Site is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents.
This Site includes content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing that information or those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
ONLINE PURCHASES AND OTHER TERMS AND CONDITIONS. You must be at least 18 years old to make a purchase. If you are a minor, you must have your parent or guardian submit the payment information and authorize the transaction on your behalf. By submitting your payment information and making a purchase, you agree to pay all applicable transaction costs including sales taxes, credit card fees, transaction fees, mobile carrier fees, etc. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S), PAYPAL ACCOUNT OR OTHER AUTHORIZED METHOD OF PAYMENT UTILIZED IN CONNECTION WITH ANY TRANSACTION ON OR IN CONNECTION WITH THIS SITE. All purchases through the Site or other transactions for the sale of goods, or services or information formed through the Site or as a result of visits to the Site made by you are governed by our Terms of Sale www.sandcloud.com/pages/terms-and-conditions-of-sale, which are hereby incorporated into these Terms of Use.
Additional terms and conditions may also apply to specific portions, services or features of the Site. All such additional terms and conditions are hereby incorporated by this reference into these Terms of Use.
DISCLAIMER OF WARRANTIES. THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE RELATING TO ANY OF THE PRODUCTS SOLD ON THIS WEBSITE.
COMPANY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SITE LINKED TO IT.
YOUR USE OF THE SITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE ARE AT YOUR OWN RISK. THE SITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL BE ACCURATE, RELIABLE, SECURE, BUG-FREE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
SUBJECT TO ANY APPLICABLE LAWS WHICH PROHIBIT THE FOLLOWING LIMITATIONS AND EXCLUSIONS, THE DISCLAIMERS OF LIABILITY CONTAINED IN THIS "NO WARRANTIES" SECTION APPLY TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF THIS SITE, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF STATUTORY OR IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, INCLUDING (AS APPLICABLE IN YOUR JURISDICTION), WARRANTIES OF TITLE, POSSESSION, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, CORRESPONDENCE WITH A DESCRIPTION OR SAMPLE OF THE APPLICABLE GOODS, AND THAT SERVICES WILL BE CARRIED OUT AT A REASONABLE PRICE, USING REASONABLE SKILL AND WITHIN A REASONABLE TIME. IN SUCH STATES OR JURISDICTIONS THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS "NO WARRANTIES" SECTION MAY NOT APPLY TO YOU. CONSEQUENTLY, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF COMPANY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW, THEREBY MINIMIZING THE LIABILITY OF THE COMPANY TO YOU TO THE LOWEST AMOUNT PERMITTED BY APPLICABLE LAW. THIS LIMITATION IS INDEPENDENT OF ANY OTHER LIMITATION SET FORTH IN THESE TERMS OF USE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
LIMITATION ON LIABILITY. IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR YOUR INABILITY TO USE, THE SITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE SITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. THE TERMS IN THE AGREEMENT RELATING TO DISCLAIMER OF WARRANTIES, ACCESS AND USE OF COMPANY’S PRODUCTS, AUDIT, LIMITATION OF LIABILITY, INDEMNIFICATION, USER’S RELEASE OF CLAIMS, AND PAYMENT FOR COMPANY’S PRODUCTS SHALL SURVIVE ANY TERMINATION OF THE END USER AGREEMENT.
YOU AGREE THAT ANY BREACH BY YOU OF ITS AGREEMENTS WITH SAND CLOUD WOULD CAUSE SAND CLOUD AND THE INDEMNIFIED PARTIES IRREPARABLE HARM AND THAT, IN ADDITION TO MONEY DAMAGES, SAND CLOUD AND THE INDEMNIFIED PARTIES SHALL BE ENTITLED TO INJUNCTIVE RELIEF, WITHOUT HAVING TO POST A BOND.
IN THE EVENT ANY CLAIM RELATING TO THE PERFORMANCE OR NONPERFORMANCE BY COMPANY PURSUANT TO THESE TERMS OF USE, OR IN ANY OTHER WAY CONCERNING THIS SITE, IS MADE BY YOU, THE ACTUAL DAMAGES TO WHICH YOU MAY BE ENTITLED SHALL BE LIMITED TO THE FEES, IF ANY, PAID BY YOU FOR USE OF THIS SITE.
DISPUTE RESOLUTION. You agree that any suit, action, claim or dispute (“Claim”) arising out of, or relating to, these Terms of Use (including without limitation, statutory, equitable or tort claims) shall be submitted to the American Arbitration Association (“AAA”) for final and binding arbitration in San Diego, California, in English, before a single neutral arbitrator (“Arbitrator”). The Arbitrator shall be a retired state or federal court judge and shall be mutually agreed upon by the parties. If the parties are unable to agree on an Arbitrator, the Arbitrator shall be appointed by AAA with consideration given to the Arbitrator's experience presiding over or litigating matters related to websites. Notwithstanding the foregoing, Company may bring an action in any court of applicable jurisdiction to protect its intellectual property or other rights or to seek to obtain injunctive relief or other equitable remedies from a court to enforce the provisions of these Terms of Use or to enforce the decision of the Arbitrator.
You will not raise in connection therewith, and hereby waive, any defenses based upon venue, the inconvenience of the forum, the lack of personal jurisdiction, the sufficiency of service of process or the like in any such action, suit or proceeding brought in the State of California. If necessary, you further agree and expressly consent to the exercise of personal jurisdiction by the courts of the State of California in connection with any such dispute including any Claim involving Company or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers, content providers and any other party involved in creating, producing, delivering or maintaining this Site.
YOU AND COMPANY AGREE THAT ANY ARBITRATION SHALL BE LIMITED TO THE CLAIM BETWEEN COMPANY AND YOU INDIVIDUALLY. TO THE FULLEST EXTENT PERMITTED BY LAW: (1) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; (2) THERE IS NO RIGHT OR AUTHORITY FOR ANY CLAIM TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND (3) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL, BUT YOU ARE WAIVING THOSE RIGHTS.
INDEMNITY. You agree to indemnify Company for certain of your acts and omissions. You agree to indemnify, defend, and hold harmless Company, its affiliates, officers, directors, employees, consultants, agents, and representatives from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising out of your access to, or use of, the Site, your violation of these Terms of Use, or your infringement, or the infringement by any other user of your account, of any intellectual property or other right of any person or entity. Company will notify you of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any third-party claim, loss, liability, damage, or cost.
COPYRIGHT. All contents of Site or Service are: Copyright © 2018 Sand Cloud Holdings LLC, 4629 Cass Street, Suite 52, San Diego, CA 92109.
GOVERNING LAW. These Terms of Use shall be construed in accordance with and governed by the laws of the United States and the State of California, without reference to their rules regarding conflicts of law. You hereby irrevocably consent to the exclusive jurisdiction of the state or federal courts in San Diego County, California in all disputes arising out of or related to, the use of the Site, Products or Service.
SEVERABILITY; WAIVER; STATUTE OF LIMITATIONS; ASSIGNMENT. If, for whatever reason, a court, or arbitrator, of competent jurisdiction finds any term or condition in these Terms of Use to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect. No waiver of any breach of any provision of these Terms of Use by Company shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. You agree that, regardless of any statute or law to the contrary, any claim you may have under this Agreement must be brought within one (1) year after the cause of action arises, or such claim or cause of action is forever barred. Company may assign these Terms of Use, in its sole and absolute discretion, with or without notice to one or more third parties.
NO LICENSE. Nothing contained on the Site should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by Company or by any third party.
CALIFORNIA USE ONLY. The Site is controlled and operated by Company from its offices in the State of California. Company makes no representation that any of the materials or the services to which you have been given access are available or appropriate for use in other geographic locations. Your use of or access to the Site should not be construed as Company’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California.
MODIFICATIONS. Company may, in its sole discretion and without prior notice, (a) revise these Terms of Use; (b) modify the Site and/or the Service; and (c) discontinue the Site and/or Service at any time. Company shall post any revision to these Terms of Use to the Site, and the revision shall be effective immediately on such posting. You agree to review these Terms of Use and other online policies posted on the Site periodically to be aware of any revisions. You agree that, by continuing to use or access the Site following notice of any revision, you shall abide, and be bound by any such revision.
ACKNOWLEDGEMENT. BY ACCESSING THE SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF USE AND AGREE TO BE BOUND BY THEM AND YOU AGREE THAT COMPANY MAY PROVIDE YOU WITH THE TERMS OF USE IN ONLY ELECTRONIC FORM.
