ClusterHQ Volume Hub
Effective Date: November 15, 2015
Last Updated Date: Feb 3, 2016
Welcome to the Volume Hub! The Volume Hub enables you to manage and view the information and data related to the containers, volumes, and servers on which you have Flocker installed.
THESE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE MOST DISPUTES UNLESS YOU TIMELY EXERCISE YOUR OPT-OUT RIGHTS DESCRIBED IN SECTION 10(b).
THESE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
IF YOU ARE AN INDIVIDUAL BASED IN THE EUROPEAN UNION, WHO USES THE CLUSTERHQ PROPERTIES AS A CONSUMER, PLEASE NOTE THAT THESE TERMS APPLY TO YOU AS AMENDED BY THE EUROPEAN SPECIFIC TERMS CONTAINED IN SECTION 12.
PLEASE NOTE THAT The Terms are subject to change by ClusterHQ in its sole discretion at any time. When changes are made, ClusterHQ will make a new copy of the Terms available at the Website. We will also update the “Last Updated” date at the top of the Terms. If we make any material changes, and you have registered with us to create an Account (as defined below), we will also send an e-mail to the e-mail address associated with the Account. Any changes to the Terms will be effective immediately for new users of the Website and/or Services and will be effective thirty (30) days after posting of notice of such changes on the Website for existing users, provided that any material changes shall be effective for users who have an Account with us upon the earlier of thirty (30) days after posting of notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to the e-mail address associated with the Account. ClusterHQ may require you to provide consent to the updated Terms in a specified manner before further use of the Website and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
Use of the Services and ClusterHQ Properties. The Website, the Services, and the information and content available on or through the foregoing (collectively, the “ClusterHQ Properties”) are protected by copyright laws throughout the world. Subject to the Terms, ClusterHQ grants you a limited license to reproduce portions of the ClusterHQ Properties for the sole purpose of using the ClusterHQ Properties for your personal or internal business purposes. Unless otherwise specified by the ClusterHQ in a separate license, your right to use any ClusterHQ Properties is subject to the Terms.
a. Software. In order to use the Services, you must download and install Flocker (the “Software”) on your servers. If you have already downloaded and installed Flocker onto your servers, you may need to download and install the latest update to Flocker in order to use the Services. The Software and its related documentation are available at www.clusterhq.com/flocker and is licensed under Apache License version 2.0. The terms of the license agreement are available at https://github.com/ClusterHQ/flocker/blob/master/LICENSE. You shall not use, download or install the Software unless you agree to the terms of such license agreement. At no time will ClusterHQ provide you with a tangible copy of the Software or its related documentation.
b. 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. 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.
c. 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 and send an e-mail to the e-mail address associated with your Account (as defined below). 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.
d. Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) 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; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other ClusterHQ Properties (including images, text, page layout or form) of the ClusterHQ; (c) you shall not use any metatags or other “hidden text” using the ClusterHQ’s name or trademarks; (d) 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; (e) 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); (f) you shall not access the ClusterHQ Properties in order to build a similar or competitive website, application or service; (g) 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 (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the ClusterHQ Properties. Any future release, update or other addition to the ClusterHQ Properties shall be subject to the Terms. ClusterHQ, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the ClusterHQ Properties terminates the licenses granted by the ClusterHQ pursuant to the Terms.
Registration and Cluster ID Association.
a. In order to use the Services, (1) you must either be a user who has registered an account (“Registered User”) on the Website (“Account”) or be a user who shares an Account with a Registered User (“Shared User”) and (2) either a Registered User or a Shared User must associate the applicable server cluster identification numbers (“Cluster IDs”) to the Account. Each Cluster ID can only be associated with one Account. Accordingly, if more than one user needs to access the Services to manage one or more server clusters, the Registered User must share an Account with the other Shared Users. By associating a Cluster ID to your Account and/or using the Services, you represent and warrant that you have the legal authority to manage and view the information and data related to the containers, volumes, and servers associated with the Cluster IDs (“Cluster Data”) and that you have the authority to grant ClusterHQ the license set forth in Section 3(d) in order to provide the Services.
b. If you are registering for an Account, you agree to provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”) and you agree to maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself and your company. If you provide any information that is untrue, inaccurate, not current or incomplete, or ClusterHQ has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, ClusterHQ has the right to suspend or terminate the Account and refuse any and all current or future use of the ClusterHQ Properties (or any portion thereof) to you and any Shared Users at ClusterHQ’s sole discretion.
c. If you are using an Account, whether as the Registered User or as a Shared User, you represent that you are (1) at least eighteen (18) years old and (2) 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. You are responsible for all activities that occur under the Account. You may not share the Account or password with anyone other than with the Registered User and other Shared Users. You agree to (1) notify ClusterHQ immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session.
d. 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.
Ownership and Licenses.
a. ClusterHQ Properties. You agree that the ClusterHQ and its licensors and suppliers own all rights, title and interest in the ClusterHQ Properties.
b. 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.
c. Your Account. 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.
d. Cluster Data. You grant ClusterHQ a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to access, use, reproduce, modify, adapt, perform, display, and create derivative works of the Cluster Data for the purposes of operating and providing the Services.
e. 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.
- Third-Party Links. The ClusterHQ Properties may contain links to third-party websites (“Third-Party Websites”). When you click on a link to a third-party website, we will not warn you that you have left the ClusterHQ Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of ClusterHQ. ClusterHQ is not responsible for any Third-Party Websites. ClusterHQ provides these Third-Party Websites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or their products or services. You use all links in Third-Party Websites at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any third-party websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
- Indemnification. You agree to indemnify and hold ClusterHQ, its parents, subsidiaries, affiliates, officers, directors, employees, agents, partners, licensors, and suppliers (collectively the “ClusterHQ Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, the ClusterHQ Properties; (b) your violation of the Terms; (c) your violation of any rights of another party; or (d) 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. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the ClusterHQ Properties.
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 and they have not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the ClusterHQ Properties meet your requirements – for more information on the nature of the facilities and functions of the ClusterHQ Properties – please see http://clusterhq.com/. To the extent you deal with us as, or on behalf of a business, 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 and non-infringement relating to the ClusterHQ Properties.
a. 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; (4) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE CLUSTERHQ PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (5) ANY ERRORS IN THE CLUSTERHQ PROPERTIES WILL BE CORRECTED.
b. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE CLUSTERHQ PROPERTIES IS ACCESSED 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.
c. 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.
Limitation of Liability.
a. Commercial loss excluded. Subject to sub-section (d), below, we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity arising as a result, or in the course, of your use of the ClusterHQ Properties for any commercial, business or resale purposes.
b. Only foreseeable loss covered. To the extent that we may be liable to you for loss you suffer as a result of your non-commercial use of the ClusterHQ Properties, we are only responsible for loss or damage you suffer that is a foreseeable result of our breach of the Terms or our negligence up to the limit specified in Sub-section (c), below. We are not responsible for any unforeseeable loss or damage you may suffer.
c. Cap on liability. Subject to sub-section (d), below, our maximum aggregate liability under or in connection with the Terms whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to one hundred US Dollars (US $100).
d. Compliance with the law. Nothing in sections 6 or 7 or elsewhere in the Terms shall limit or exclude ClusterHQ liability for:
- our wilful misconduct;
- death or personal injury resulting from our negligence;
- fraud or fraudulent misrepresentation;
- our breach of any terms implied by section 46 (remedy for damage to device or to other digital content) the UK Consumer Rights Act 2015 or any equivalent provision of consumer-protection law implemented elsewhere in the European Union; or
- any other liability that cannot be excluded or limited by applicable law.
Term and Termination.
a. Term. The Terms commence on the date when you accept them (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 the Terms.
b. Termination. If you have materially breached any provision of the Terms, 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 the Terms, 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 the Terms, 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 the Terms; (ii) cancel your Account; (iii) notify and/or send any Cluster Data or other content you have provided to us 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 the Terms; (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. 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.
c. Termination of Services by You. If you want to terminate the Services provided by ClusterHQ, you may do so by (a) notifying ClusterHQ at any time and (b) closing your Account. Your notice should be sent, in writing, to ClusterHQ’s address set forth below.
d. Effect of Termination. Termination of your Account or the Services includes deletion of your password and all Cluster Data from our live databases. Upon termination of any Service, your right to use such Service will automatically terminate immediately. ClusterHQ will not have any liability whatsoever to you for any suspension or termination, including for deletion of the Cluster Data. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
e. No Subsequent Registration. If your registration(s) with or ability to access the ClusterHQ Properties is discontinued by ClusterHQ due to your violation of any portion of the Terms or for otherwise inappropriate conduct, then you agree that you shall not attempt to re-register with or access the ClusterHQ Properties through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, ClusterHQ reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
- International Users. This Website can be accessed from countries around the world and may contain references to ClusterHQ Properties and other content that are not available in your country. These references do not imply that ClusterHQ intends to introduce such ClusterHQ Properties or content in your country. The ClusterHQ Properties are controlled and offered by ClusterHQ from its facilities in the United States of America and England. 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.
a. Applicability of Arbitration Agreement. Except as expressly provided herein, all claims and disputes (excluding claims for emergency injunctive relief as set forth below) in connection with the Terms or the use of any product or service provided by ClusterHQ that cannot be resolved informally or in small claims court shall be resolved exclusively by binding arbitration on an individual basis under the terms of this arbitration provision (“Arbitration Agreement”). Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and ClusterHQ, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
b. 30-Day Right to Opt Out. Notwithstanding the foregoing, you have the right to opt out of the arbitration provisions of this Arbitration Agreement by mailing written notice of your decision to opt out to the following address: ClusterHQ Inc., 1550 Bryant Street, San Francisco, CA, 94103 Attn: Legal Department. To be effective, your opt-out notice must be postmarked within 30 days of your first use of ClusterHQ’s Website. If you timely send this notice, then the obligation to arbitrate disputes will not apply to either party and you must litigate pursuant to subparagraph (o) below. If you do not timely send this notice, then you agree to be bound by this Arbitration Agreement in its entirety.
c. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to ClusterHQ should be sent to: ClusterHQ Inc., 1550 Bryant Street, San Francisco, CA, 94103 Attn: Legal Department. After the Notice is received, you and ClusterHQ may attempt to resolve the claim or dispute informally. If you and ClusterHQ do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
d. Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding anything to the contrary in these Terms, if the arbitrator grants you an award that is greater than the last settlement offer that ClusterHQ made to you prior to the initiation of arbitration, ClusterHQ will pay you the greater of the award or US $2,500.
e. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
f. Time Limits. If you or ClusterHQ pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
g. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and ClusterHQ, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. 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 AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. 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 ClusterHQ.
h. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT (OTHER THAN A SMALL CLAIMS COURT) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and ClusterHQ in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND CLUSTERHQ WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
i. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in San Francisco County, California.
j. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Terms shall continue in full force and effect.
k. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
l. Survival of Agreement. This Arbitration Agreement will survive the termination of your user relationship with ClusterHQ.
m. Small Claims Court. Notwithstanding the foregoing, either you or ClusterHQ may bring an individual action in small claims court.
n. Emergency Injunctive Relief. Notwithstanding the foregoing, either party may seek emergency injunctive relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
o. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, and for claims involving users who have delivered an effective opt-out notice pursuant to subparagraph (b) above, the parties hereby agree to submit to the personal jurisdiction of the courts located within San Francisco County, California, for such purpose.
p. Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if ClusterHQ makes any future material change to this Arbitration Agreement, such change will not apply to any individual claim(s) that you had already provided notice of to ClusterHQ prior to the effective date of the change.
a. 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.
b. 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 or your use of the ClusterHQ Properties. 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.”
c. Assignment. The Terms, 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.
d. 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.
e. Compliance. If you believe that ClusterHQ has not adhered to the Terms, please contact ClusterHQ by emailing us at [email protected] 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.
f. 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 the Terms, 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 Attn: Legal Department. 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.
g. Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
h. Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms 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.
i. 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.
j. 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.
k. Entire Agreement. The Terms 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.
Terms specific to users in the European Union.
a. General. These Terms shall apply to you only insofar as they are enforceable under the applicable laws of the jurisdiction in which you obtained the ClusterHQ Properties or are ordinarily resident.
To the extent that they are not enforceable under the applicable laws of the jurisdiction in which you obtained the ClusterHQ Properties or are ordinarily resident, the following Sections of the Terms shall not apply to you:
- Paragraphs 3 and 4 of the Preamble to the Terms;
- Section 5 (Indemnification);
- Sub-section (b) of Section 6 (Disclaimers of Warranties);
- Section 10 (Arbitration);
- Sub-section (at (Release) of Section 11 (General Provisions); and
- Sub-section (at (Entire Agreement) of Section 11 (General Provisions).
- Choice of Law and Venue. Please note that this, its subject matter and its formation, are governed by English law. You and ClusterHQ both agree that the courts of England and Wales will have non-exclusive jurisdiction. However, if you are a resident of a country elsewhere in the European Union, nothing in this Section 10 will prevent you from bringing proceedings in the jurisdiction in which you are ordinarily resident.
End of Terms