Terms of Use

ClusterHQ FlockerHub

Terms of Use

Effective Date: November 18, 2016

Last Updated Date: November 18, 2016

Welcome to FlockerHub! FlockerHub enables you to manage and view the information and data related to the volumes and snapshots that have been captured, synchronized and shared using ClusterHQ’s Fli software.

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “AGREEMENT”) CAREFULLY. BY ACCESSING OR USING THE CLUSTERHQ INC (“CLUSTERHQ”) FLOCKERHUB WEBSITE WITH A LINK TO THIS AGREEMENT (THE “WEBSITE√”), USING THE FLOCKERHUB SERVICES (THE “SERVICES”), CLICKING AN “I ACCEPT” OR SIMILAR BUTTON AND/OR MERELY BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH CLUSTERHQ, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY FOR WHICH YOU ARE USING THE SERVICES, AND TO BIND THAT COMPANY TO THIS AGREEMENT. **IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE WEBSITE OR THE SERVICES.

SECTION 13 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 13 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT. THESE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

Subject to Section 13(i) of this Agreement, ClusterHQ reserves the right to modify this Agreement, effective upon posting of an updated version of this Agreement. You should regularly review this Agreement, as your continued use of the Website or Services after any such changes constitutes your agreement to such changes.

  1. Use of the Services and ClusterHQ Properties. The Website, the Services, and the information and content made available by ClusterHQ on or through the foregoing (collectively, the “ClusterHQ Properties”) are protected by copyright laws throughout the world. Subject to this Agreement, ClusterHQ grants you a limited license to use the ClusterHQ Properties solely for your personal or internal business purposes. Unless otherwise specified by ClusterHQ in a separate license, your right to use any ClusterHQ Properties is subject to this Agreement. ClusterHQ and its licensors reserve all rights not granted in this Agreement.

    • Software. In order to use the Services, you must use software or a software-as-a-service that is capable of interacting with the Services (the “Software”).

      • Fli is a Software made available by ClusterHQ which connects to the Services. In order to use Fli, you will need to download and install Fli on your local computer or server. For information on how to download and install Fli, please visit https://fli-docs.clusterhq.com/en/latest. Fli is licensed under Apache License version 2.0. The terms of Fli’s license agreement are available at https://github.com/ClusterHQ/fli/blob/master/LICENSE. You shall not use, download or install Fli unless you agree to the terms of such license agreement. At no time will ClusterHQ provide you with a tangible copy of Fli or its related documentation.
      • If you elect to use Software that is provided by a third party (including those utilizing a ClusterHQ API (application program interface)), you acknowledge and agree that your relationship with the third-party Software provider is governed solely by your agreement(s) with such third party. You represent that your use of third-party Software does not obligate ClusterHQ to pay any fees or make ClusterHQ subject to any usage limitations imposed by any third-party Software providers. ClusterHQ does not control and is not responsible for third-party Software. ClusterHQ does not review, approve, monitor, endorse, warrant, or make any representations with respect to any third-party Software. Your use of all third-party Software is at your own risk.
    • Updates. You understand that the ClusterHQ Properties are evolving. Accordingly, features and functions may be added, modified, or removed from the ClusterHQ Properties at any time at the sole discretion of ClusterHQ. You acknowledge and agree that ClusterHQ may update the ClusterHQ Properties with or without notifying you. Any future release, update or other addition to the ClusterHQ Properties shall be subject to this Agreement. You may be required to download and install updates to the Software in connection with an update to the ClusterHQ Properties. You may also need to update third-party software from time to time in order to continue use of the ClusterHQ Properties. Examples of third-party software includes, but is not limited to, web browsers and authentication systems used by Google or GitHub.
    • Reservation of Rights. ClusterHQ reserves the right to charge fees for access and use of the ClusterHQ Properties (in whole or in part) at any time, in its sole discretion. If ClusterHQ implements any fees, ClusterHQ will post a notice on the Website. After the fees become effective, you may no longer be able to access the ClusterHQ Properties (in whole or in part) unless you provide a method of payment and consent to the payment terms and any additional terms which may be presented at the time of purchase.
    • Restrictions on Use of Website and Services. The rights granted to you in this Agreement are subject to the following restrictions:

      • you shall only use the Services in accordance with the documentation available at https://flockerhub-docs.clusterhq.com/en/latest/;
      • you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the ClusterHQ Properties or * any portion of the ClusterHQ Properties;
      • you shall not frame or utilize framing techniques to enclose any trademark, logo, or other ClusterHQ Properties (including images, text, page layout or form);
      • you shall not use any metatags or other “hidden text” using ClusterHQ’s name or trademarks;
      • you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the ClusterHQ Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law;
      • you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);
      • you shall not abuse or make excessively frequent requests to the Services;
      • you shall not interfere with, or damage, ClusterHQ Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
      • you shall not access the ClusterHQ Properties in order to build a similar or competitive website or service; except as expressly stated herein, no part of the ClusterHQ Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and
      • you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the ClusterHQ Properties.
    • Privacy Policy. The terms of our privacy policy from time to time, available at {https://clusterhq.com/}/legal/privacy/flockerhub are incorporated into these Agreement by reference and apply to your use of the ClusterHQ Properties and our provision of the ClusterHQ Properties and related services.
  2. Account Registration.
    • In order to use the Services, you must register for an account (“Account”) by logging into your Google, GitHub, or other third-party account authorized by ClusterHQ (“Third-Party Account”).
    • By registering for an Account, you represent that (1) you are not a person barred from using the ClusterHQ Properties under the laws of the United States, your place of residence or any other applicable jurisdiction and (2) you are entitled to disclose your Third-Party Account login information to ClusterHQ and grant ClusterHQ access to your Third-Party Account without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating ClusterHQ to pay any fees or making ClusterHQ subject to any usage limitations imposed by such Third-Party Account providers.
    • By granting ClusterHQ access to any Third-Party Account, you understand that ClusterHQ may access, make available and store (if applicable) any Third-Party Account information or content (e.g. your username and profile picture) (“Third-Party Account Content”). All Third-Party Account Content shall be considered to be your User Content (as defined in Section 3). Subject to the privacy settings that you have set in such Third-Party Account, personally identifiable information that you post to your Third-Party Account may be available on and through your Account on the ClusterHQ Properties. ClusterHQ makes no effort to review any Third-Party Account Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and ClusterHQ is not responsible for any Third-Party Account Content.
    • Please note that if a Third-Party Account or associated service becomes unavailable or ClusterHQ’s access to such Third-Party Account is terminated by the third-party service provider, then you will no longer have access to your Stored Data (as defined in Section 3(a)(i)).
    • PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY PROVIDER OF YOUR THIRD-PARTY ACCOUNT IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY PROVIDER, AND CLUSTERHQ DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY PROVIDER IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET WITH SUCH THIRD-PARTY ACCOUNT.
    • You agree not to create an Account using a false identity or false information, or on behalf of someone other than yourself and/or your company, as applicable. You are responsible for all activities that occur under the Account. You agree to notify ClusterHQ immediately of any unauthorized use of your password or any other breach of security and exit from your Account at the end of each session. You agree not to create an Account or use the ClusterHQ Properties if you have been previously removed by ClusterHQ, or if you have been previously banned from any of the ClusterHQ Properties.
    • Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of ClusterHQ.
  3. Your Content and Stored Data.
    • Responsible Party for Content and Stored Data.

      • You acknowledge and agree that all content and data is the sole responsibility of the party from whom such content originated. This means that each user is entirely responsible for all content that such user makes available through the Services (e.g. profile information) (“User Content”) and all files, data, and metadata such user uploads or otherwise transmits to the Services (or which is automatically submitted by a computer program acting on the user’s behalf) for repository purposes (“Stored Data”).

      • User accounts set as administrative accounts (“Administrators”) of a group have the ability to grant, monitor, restrict, and terminate other users’ access to the group’s Stored Data. ClusterHQ is not responsible for management and administration of such groups, which are the sole responsibility of such Administrators.

      • By using the Services, you represent and warrant that you are authorized to transmit, manage, modify, access, make available, view and/or delete Stored Data, as applicable.

    • Ownership of Your User Content and Stored Data. ClusterHQ does not claim ownership of any User Content or Stored Data you make available on the Services. However, when you as a user post or publish your User Content and Stored Data on or in the Services, you represent that you have all of the necessary rights to grant ClusterHQ the license set forth in Section 3(c). Except with respect to your User Content and Stored Data, you agree that you have no right or title in or to any content or other data that appears on or in the Services.

    • License to Your Content and Stored Data. Subject to any applicable Account settings that you select, you grant ClusterHQ a right to use, display, and make available your User Content and Stored Data for the purposes of operating, providing, and improving ClusterHQ’s products and services. Note that other users may search for, see, use, modify and reproduce any of User Content and Stored Data that you submit to any “public” area of the Services or otherwise make publicly available.

    • Other Restrictions on User Conduct. You agree not to use the Services for any purpose prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third-party to) (I) take any action or (II) make available any User Content or Stored Data on or through the Services that:
      • infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity;
      • is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane;
      • is malicious such as viruses, worms, Trojan horses, and other similar technology;
      • constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; or
      • impersonates any person or entity, including any employee or representative of ClusterHQ.
    • Responsibility for User Interactions. You are solely responsible for your interactions with other users and any other parties with whom you interact; provided, however, that ClusterHQ reserves the right, but has no obligation, to intercede in such disputes. You agree that ClusterHQ will not be responsible for any liability incurred as the result of such interactions.

    • Monitoring and Investigations. ClusterHQ has no obligation to pre-screen any User Content or Stored Data. You use all User Content and Stored Data and interact with other users at your own risk. Although ClusterHQ does not generally monitor User Content or Stored Data, ClusterHQ reserves the right in its sole discretion to pre-screen, refuse, or remove any User Content or Stored Data and investigate any possible violations by you of this Agreement. ClusterHQ shall have the right, in its sole discretion, to remove any User Content and Stored Data that violates this Agreement or is otherwise objectionable take further actions in accordance with Section 11(b).
  4. Ownership of ClusterHQ Properties.

    • ClusterHQ Properties. You agree that the ClusterHQ and its licensors and suppliers own all rights, title and interest in the ClusterHQ Properties.

    • Trademarks. ClusterHQ’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with the ClusterHQ Properties are the trademarks of ClusterHQ and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the ClusterHQ Properties are the property of their respective owners.
    • Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to ClusterHQ (“Feedback”) is at your own risk and that ClusterHQ has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to ClusterHQ a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the ClusterHQ Properties.
  5. Third-Party Links. The ClusterHQ Properties may contain links to third-party services such as third party websites or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the ClusterHQ Properties. ClusterHQ does not control and is not responsible for Third-Party Links. ClusterHQ provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.

  6. Indemnification. You agree to indemnify and hold ClusterHQ, its corporate parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each (collectively, the “ClusterHQ Parties”) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any claims concerning: (a) your User Content or Stored Data; (b) your misuse of the ClusterHQ Properties; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any users; or (e) your violation of any applicable laws, rules or regulations. ClusterHQ reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with ClusterHQ in asserting any available defenses. This provision does not require you to indemnify any of the ClusterHQ Parties for any unconscionable commercial practice by such party or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your Account, this Agreement or your access to the ClusterHQ Properties.

  7. Disclaimer of Warranties.
    • YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE CLUSTERHQ PROPERTIES IS AT YOUR SOLE RISK, AND THE CLUSTERHQ PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE CLUSTERHQ PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

    • THE CLUSTERHQ PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE CLUSTERHQ PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE CLUSTERHQ PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE CLUSTERHQ PROPERTIES ARE FREE OF MALICIOUS CODE; OR (4) ANY ERRORS IN THE CLUSTERHQ PROPERTIES WILL BE CORRECTED.

    • ANY STORED DATA POSTED TO, DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE CLUSTERHQ PROPERTIES IS AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM, SERVER, AND ANY OTHER DEVICE YOU USE TO ACCESS THE CLUSTERHQ PROPERTIES, OR ANY OTHER LOSS, INCLUDING ANY DATA LOSS, THAT RESULTS FROM ACCESSING OR USING THE CLUSTERHQ PROPERTIES.
    • THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. WE MAKE NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
    • FROM TIME TO TIME, CLUSTERHQ MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT CLUSTERHQ’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
    • YOU ACKNOWLEDGE AND AGREE THAT THE CLUSTERHQ PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE CLUSTERHQ PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
    • CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
  8. Limitation of Liability.

    • Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL ANY CLUSTERHQ PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE CLUSTERHQ PROPERTIES OR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT CLUSTERHQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE CLUSTERHQ PROPERTIES OR (2) ANY OTHER MATTER RELATED TO THE CLUSTERHQ PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.

    • Cap on Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THE CLUSTERHQ PROPERTIES SHALL IN NO EVENT EXCEED ONE HUNDRED DOLLARS ($100).

    • Basis of Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CLUSTERHQ AND YOU.
    • Exclusion. THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
  9. Procedure for Making Claims of Copyright Infringement. If you believe content posted on the Services infringes your copyright rights, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Correspondence to our Copyright Agent regarding notice of claims of copyright infringement should be addressed to: ClusterHQ Inc., 1550 Bryant Street, San Francisco, CA, 94103.

  10. Throttling and Suspension of Services. You acknowledge and agree that ClusterHQ may immediately throttle and/or suspend the Services (in whole or in part), without any liability or notice to you if ClusterHQ determines in its sole discretion that:

    • your bandwidth or storage usage significantly exceeds the average usage of other users (as determined solely by ClusterHQ); or
    • there is a Security Emergency. “Security Emergency” means: (i) an issue that materially disrupts, or could materially disrupt, your use of the Services, other users’ use of the Services, or the infrastructure used to provide the Services or (ii) any unauthorized third-party access to the Services.
  11. Term and Termination.

    • Term. This Agreement commences on the date when you accept this Agreement (as described in the preamble above) and remain in full force and effect while you use the ClusterHQ Properties, unless terminated earlier in accordance with this Agreement.

    • Termination.

      • If you have not accessed the Services during a consecutive 90 days period, we reserve the right, in our sole discretion, to suspend or terminate your Account with 30 days of notice.
      • If you have materially breached any provision of this Agreement, if we are required to do so by law (e.g., where the provision of any of the ClusterHQ Properties is, or becomes, unlawful), or if we choose to discontinue the ClusterHQ Properties (in part or in whole), we have the right to, immediately and without notice, suspend or terminate your Account and any ClusterHQ Properties provided to you.
      • If we become aware of any possible violations by you of this Agreement, we reserve the right to investigate such violations. In the event that we determine, in our sole discretion, that you have breached any portion of this Agreement, or have otherwise demonstrated inappropriate conduct, we reserve the right to (i) warn you via e-mail (to any e-mail address you have provided to us) that you have violated this Agreement; (ii) cancel your Account; (iii) notify and/or send any Stored Data and User Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (iv) pursue any other action which we deem to be appropriate. If, as a result of the investigation, we believe that illegal activity has occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.
      • We are entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the ClusterHQ Properties in our possession in connection with your use of the ClusterHQ Properties, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce this Agreement; (iii) respond to your requests for customer service; or (iv) protect the rights, property or personal safety of ClusterHQ, its users or the public, and to comply with the requests of all law enforcement or other government officials, as we in our sole discretion believe to be necessary or appropriate. We reserve the right, in our sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
      • Any unauthorized use of the ClusterHQ Properties immediately terminates the licenses granted by the ClusterHQ pursuant to this Agreement.
      • You agree that all terminations shall be made in our sole discretion and that we shall not be liable to you or any third-party for enforcing this provision.
    • Termination of Services by You. If you want to terminate the Services provided by ClusterHQ, you may do so by either using the cancellation options available in the Service (if available) or by sending an email to support@clusterhq.com.
    • Effect of Termination. ClusterHQ will not have any liability whatsoever to you for any suspension or termination, including for deletion of your User Content and Stored Data. All provisions of this Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
  12. International Users. This ClusterHQ Properties can be accessed from countries around the world and may contain references to ClusterHQ Properties that are not available in your country. These references do not imply that ClusterHQ intends to introduce such ClusterHQ Properties in your country. The ClusterHQ Properties are controlled and offered by ClusterHQ from its facilities in the United States of America. ClusterHQ makes no representations that the ClusterHQ Properties are appropriate or available for use in other locations. Those who access or use the ClusterHQ Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
  13. Dispute Resolution. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires you to arbitrate most disputes with ClusterHQ and limits the manner in which you can seek relief from us.

    • Applicability of Arbitration Agreement. You agree that any dispute between you and us relating in any way to the Services, our advertising or marketing practices, or this Agreement, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or ClusterHQ may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement. IF YOU AGREE TO ARBITRATION WITH CLUSTERHQ, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST CLUSTERHQ ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING COVERED CLAIMS AGAINST CLUSTERHQ ONLY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS ARBITRATION AGREEMENT.

    • Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to ClusterHQ Inc., 1550 Bryant Street, San Francisco, CA, 94103. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and you cannot obtain a waiver from JAMS, ClusterHQ will pay them for you. In addition, ClusterHQ will reimburse all such JAMS’ filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

    • Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and ClusterHQ. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

    • Waiver of Jury Trial. YOU AND CLUSTERHQ HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and ClusterHQ are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in section 13(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

    • Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding anything to the contrary herein, in the event that this section 13(e) is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor we shall be entitled to arbitration of such claim or dispute and instead the applicable claim or dispute shall be resolved in a court as set forth in section 14(a).

    • 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: ClusterHQ Inc., 1550 Bryant Street, San Francisco, CA, 94103 or support@clusterhq.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your ClusterHQ username (if any), the email address you used to set up your ClusterHQ account (if you have one), and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.

    • Severability. Subject to section 13(e), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

    • Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of this Agreement or your relationship with ClusterHQ.

    • Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if ClusterHQ makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) of which you had already provided notice to ClusterHQ.

  14. General Provisions.

    • Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and ClusterHQ agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state courts in San Francisco County, California or federal courts located in the Northern District of California.
    • Electronic Communications. The communications between you and ClusterHQ use electronic means, whether you visit the ClusterHQ Properties or send ClusterHQ e-mails, or whether ClusterHQ posts notices on the ClusterHQ Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from ClusterHQ in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that ClusterHQ provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
    • Release. You hereby release the ClusterHQ Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from third-party websites, software, or services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
    • Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without ClusterHQ’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
    • Force Majeure. ClusterHQ shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
    • Compliance. If you believe that ClusterHQ has not adhered to this Agreement, please contact ClusterHQ by emailing us at support@clusterhq.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
    • Notice. Where ClusterHQ requires that you provide an e-mail address, you are responsible for providing ClusterHQ with your most current e-mail address. In the event that the last e-mail address you provided to ClusterHQ is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, ClusterHQ’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to ClusterHQ at the following address: ClusterHQ Inc., 1550 Bryant Street, San Francisco, CA, 94103. Such notice shall be deemed given when received by the ClusterHQ by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
    • Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    • Severability. Subject to Section 13(e), if any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    • Export Control. You may not use, export, import, or transfer the ClusterHQ Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the ClusterHQ Properties, and any other applicable laws. In particular, but without limitation, the ClusterHQ Properties may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the ClusterHQ Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the ClusterHQ Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by ClusterHQ are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer any products, services or technology provided by ClusterHQ, either directly or indirectly, to any country in violation of such laws and regulations.
    • Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
    • Entire Agreement. This Agreement are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.