SEO Terms and Conditions
12. DISCLAIMER OF WARRANTIES.THE SITE, SERVICE AND MARKETING DATA ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. CLOUDIENCE MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH THE SITE AND/OR SERVICES OR THE PERFORMANCE OF THE SITE AND/OR SERVICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE, SERVICE AND/OR MARKETING DATA IS AT YOUR SOLE RISK. CLOUDIENCE DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE AND/OR SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT THE SITE OR SERVICE WILL BE SECURE; THAT MARKETING DATA YOU RECEIVE THROUGH THE SITE AND/ OR SERVICE WILL BE ACCURATE, CORRECT, COMPLETE OR FREE OF DEFECTS; OR THAT THE SITE OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ADDITIONALLY, CLOUDIENCE SPECIFICALLY PROVIDES NO WARRANTY OR GUARANTY OF ANY KIND THAT (I) YOU OR YOUR SITE WILL RECEIVE ANY TYPE OF GUARANTEED BENEFIT FROM THE USE OF THE SERVICES; OR (II) YOUR USE OF THE SERVICES WILL INCREASE OR IMPROVE THE TRAFFIC OR PLACEMENT OF YOUR SITE, THE TRAFFIC QUALITY TO YOUR SITE, OR REVENUES DERIVED THEREFROM.Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.13. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY.TO THE MAXIMUM EXTENT PERMITTED BY LAW, CLOUDIENCE, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, THE SERVICE AND/OR MARKETING DATA, EVEN IF CLOUDIENCE AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF CLOUDIENCE OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME THE CAUSE OF ACTION GIVING RISE TO LIABILITY AROSE. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Cloudience and its affiliates shall be limited to the fullest extent permitted by law.14. Indemnification. You agree to indemnify, defend and hold Cloudience and the Related Parties harmless from any and all claims, demands, damages or other losses, including reasonable attorneys’ fees, resulting from or arising out of your use of the Site and/or the Service or any breach by you of this ToU or any other policies that Cloudience may issue for the Site and/or Service from time to time.15. Governing Law; Jurisdiction. This ToU is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 18 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site and/or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located within Los Angeles County, California and you agree to submit to the personal jurisdiction and venue of such courts.16. Binding Arbitration.16.1. Arbitration Procedures. You and Cloudience agree that, except as provided in Section 18.4 below, all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 18 and the JAMS Rules, the terms in this Section 18 will control and prevail.Except as otherwise set forth in Section 18.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (i) you and Cloudience may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND CLOUDIENCE WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.16.2. Location. The arbitration will take place in your hometown area if you so notify Cloudience in your notice of arbitration or within ten (10) days following receipt of Cloudience’ arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.16.3. Limitations. You and Cloudience agree that any arbitration shall be limited to the Claim between Cloudience and you individually.
YOU AND CLOUDIENCE AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.16.4. Exceptions to Arbitration. You and Cloudience agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Cloudience’ intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.17. General.17.1. ToU Revisions. This ToU may only be revised in a writing signed by Cloudience, or published by Cloudience on the Site.17.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Cloudience as a result of this ToU or your use of the Service.17.3. Assignment. Cloudience may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without Cloudience’ prior written consent, and any unauthorized assignment by you shall be null and void.17.4. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.17.5. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.17.6. No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.17.7. Notices. All notices given by you or required under this ToU shall be in writing and addressed to: Cloudience, 900 W. Chandler Blvd Suite A7, Chandler AZ, 85225.ATTN: CEO.17.8. Equitable Remedies. You hereby agree that Cloudience would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.17.9. Entire Agreement. This ToU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and/or Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site and/or Service.