Terms of Service

You will indemnify and hold harmless Ontra, its affiliates, and its and its affiliates’ respective directors, managers, officers, employees, agents, successors and assigns from and against any and all damages, losses, costs and expenses (including reasonable attorneys’ fees) incurred by Ontra in connection with any action, claim or proceeding brought by a third party (excluding subcontractors and agents of Ontra) arising out of or in relation to your use of, posting, or other transmission of your End User Data in connection with the Services, your use of the Services or your violation of these Terms.

The transmission of data in connection with the use of the Services is subject to the potential for errors, omissions, delays and losses that may give rise to loss or damage to your End User Data (a “Data Event”). You understand these risks are inherent to the Services, and that you are responsible for adopting reasonable measures to limit the impact of a Data Event. If you experience a Data Event, please notify Ontra immediately at [email protected] Ontra will use its commercially reasonable efforts to promptly remedy any nonconformity or defect in the Services that resulted in a Data Event upon discovering it. Ontra will not be responsible to address or remedy any Data Event to the extent, (a) you fail to promptly notify Ontra of such Data Event, (b) the Data Event was caused by software or other equipment that was not provided by Ontra, or (c) the Data Event arises from your breach of these Terms. You understand and agree that the remedies described in the foregoing paragraph will be your sole remedy for any Data Event and that Ontra will have no further liability to you in connection with such Data Event.

EXCEPT AS EXPLICITLY PROVIDED IN THESE TERMS, THE SERVICES AND THE ONTRA PROPERTY ARE PROVIDED “AS IS” AND TO THE MAXIMUM EXTENT PERMITTED BY LAW AND ONTRA AND ITS AFFILIATES, LICENSORS, SUPPLIERS, PARTNERS, PARENT, SUBSIDIARIES AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, MEMBERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, REPRESENTATIVES AND AGENT, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (ONTRA AND ALL SUCH PARTIES TOGETHER, THE “ONTRA PARTIES”) HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE ONTRA PARTIES MAKE NO WARRANTY OF ANY KIND THAT THE SERVICES AND THE ONTRA PROPERTY, OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. THE ONTRA PARTIES WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY, OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES, INCLUDING ANY ONTRA PROPERTY, OR ANY CLAIMS, ACTIONS, SUITS, PROCEDURES, COSTS, EXPENSES, DAMAGES OR LIABILITIES ARISING OUT OF USE OF, OR IN ANY WAY RELATED TO YOUR PARTICIPATION IN, THE SERVICES. THE ONTRA PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH OR IN CONNECTION WITH THE SERVICES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU BUT WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

TO THE MAXIMUM EXTENT PERMITTED BY LAW IN NO EVENT WILL ONTRA OR THE ONTRA PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES (INCLDUDNG, INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, REVENUES, OR PROFITS, LOSS OF GOODWILL OR REPUTATION, USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY, COST OF REPLACEMENT GOODS OR SERVICES, OR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA) ARISING FROM OR IN CONNECTION WITH THESE TERMS OR THE SERVICES, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, IN EACH CASE, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL ONTRA’S OR THE ONTRA PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES EXCEED $100. NOTWITHSTANDING THE FOREGOING, THESE LIMITATIONS SHALL NOT LIMIT ANY LIABILITY OF ONTRA FOR FRAUD OR WILLFUL MISCONDUCT. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

Please read this Section carefully. It affects your rights, requires you to arbitrate certain disputes and claims with Ontra and limits the manner in which you can seek relief from Ontra.

Summary. Most of your concerns can be resolved quickly and to your satisfaction by contacting us at [email protected] In the unlikely event that we are unable to resolve your complaint to your satisfaction (or if Ontra has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration rather than in a court of general jurisdiction. Arbitration procedures are typically more limited, more efficient, less costly and less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than a court does, and is subject to very limited review by courts. Any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are not permitted. In any litigation between you and Ontra over whether to vacate or enforce an arbitration award, YOU AND ONTRA WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.

Exceptions. As limited exceptions to the Section entitled “Summary” above, and subject to the Section entitled “Exclusive Venue” below, nothing in these Terms will be deemed to waive, preclude, or otherwise limit either party’s right to: (a) bring an individual action in small claims court in the New York County, New York or any United States county where you live or work; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive or other equitable relief in a court of law and competent jurisdiction; or (d) file suit in a court of general jurisdiction to address an intellectual property infringement claim.

Arbitration Agreement. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof. Ontra and you agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding, before a single arbitrator in the County of New York in the State of New York, the United States of America. You also acknowledge and agree that Ontra’s officers, directors, managers, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, all Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof. Any arbitration between you and Ontra will proceed in the English language and be governed by the JAMS Streamlined Arbitration Rules and Procedures then in effect (collectively, “JAMS Rules”) by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with the JAMS Rules. You understand and agree that, except as expressly provided otherwise herein, the arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. YOU AGREE THAT, BY AGREEING TO THESE TERMS, YOU AND ONTRA ARE EACH WAIVING ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT, INCLUDING THE RIGHT TO A TRIAL BY JURY OR IN FRONT OF A JUDGE OR TO PARTICIPATE IN A CLASS ACTION. This arbitration provision will survive termination of these Terms.

Notice. If you or Ontra intends to seek arbitration, the party seeking to initiate the arbitration proceeding must first send, by U.S. certified mail, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), a written Notice of Dispute (“Notice”) to the other party. A Notice to Ontra should be sent via U.S. mail or other nationally recognized overnight courier addressed to Notice of Dispute, InCloud, LLC, 2041 East Street PMB39, Concord, CA 94520, Attn: General Counsel with a copy of the Notice submitted via email to to [email protected] (the “Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute and (b) set forth the specific relief sought (“Demand”). Upon receipt of a Notice, Ontra and you will attempt in good faith to resolve the dispute described in the Notice. If Ontra and you do not reach an agreement to resolve the dispute within 30 days after the Notice is received, you or Ontra may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Ontra or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Ontra is entitled.

Arbitration Costs. The JAMS Rules will govern payment of all arbitration fees. The prevailing party in any arbitration action or proceeding will be entitled to receive from the non-prevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing party will be that party that is determined by the arbitrator(s) to have prevailed on the major disputed issues. Notwithstanding the foregoing, if the value of your claim is less than ten thousand ($10,000) dollars, and the arbitrator, upon final disposition of the case, finds the substance of your claim and/or the relief sought was not frivolous or initiated for an improper purpose, Ontra will pay for the reasonable filing, administrative, and arbitrator fees associated with the arbitration.

Class Action Waiver. YOU AND ONTRA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND THAT 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. CLAIMS OF MORE THAN ONE CUSTOMER OR AUTHORIZED USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this provision is found to be unenforceable, then all of the preceding language in this Section 12 will be null and void. This arbitration agreement will survive the termination of your relationship with Ontra.

Exclusive Venue. In any circumstances where the foregoing arbitration agreement permits either you or Ontra to litigate any dispute, claim or controversy arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party and the parties agree that the exclusive jurisdiction and venue of any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services will be in the state or federal courts of and located in, respectively, New York County in the State of New York, the United States of America, or the federal district in which that county falls.

Modifications to this Arbitration Provision. If Ontra modifies this arbitration provision, other than a change to our address for delivery of a Notice, you may reject the modification by sending us written notice within 30 days of being notified of that modification to Ontra’s Notice Address, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Ontra.

Ontra reserves the right to modify or update these Terms and the Services from time to time. Ontra will notify you of any material modifications or updates to these Terms by providing you notice of those modifications or updates through the Services. You agree that Ontra has no responsibility to update you with respect to non-material modifications or updates. It is your responsibility to review these Terms periodically while accessing or using the Services. If you don’t agree with the new Terms, you are free to reject them; unfortunately, this means you will no longer be able to use or access the Services. You understand and agree that your continued use of the Services following Ontra’s posting a notice of any modification or update to these Terms indicates your acceptance and agreement to all such modifications and updates. Except for changes by us as described herein, no other amendment or modification of these Terms will be effective unless in writing and agreed upon by both you and us.

As part of the Services and if you provide your contact information you agree to receive communications directly by email or through the Services regarding such Services from Ontra. If you contact us via the Services or by direct email, you are communicating with us electronically. If you contact us electronically, you agree to receive communications from us electronically. We will communicate with you by email or by posting notices on the Site or through the Platform Services. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.

By signing up for the Services or a User Account, you confirm that you want Ontra to send you information by email regarding your account or transactions with us or that we think may be of interest to you, and you agree to receive communications from Ontra, and you represent and warrant that each person you register for the Services or for whom you provide email addresses has consented to receive communications from Ontra. You agree to indemnify and hold Ontra harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.

Although we cannot make an absolute guarantee of system security, Ontra takes reasonable steps to maintain security of its systems and the Services. If you have reason to believe system security has been breached, or if you encounter any issues with the Services, please contact us at [email protected]

Nothing in the Services, the software component of the Services or the Documentation nor any portion thereof constitutes legal, tax, accounting, regulatory or other professional advice, opinion, or recommendation by Ontra or its affiliates. Neither Ontra nor its affiliates is a law firm or provides legal services, advice, or representation. If legal or other professional assistance is required, the services of a competent professional should be sought. You assume all responsibilities and obligations with respect to any decisions, advice, conclusions, legal or tax opinions, or recommendations made or given as a result of your use of the Services, including without limitation any decision made or action taken in reliance upon content, or incorporating or referencing the content made available or accessed through the Services. No attorney-client relationship is formed with Ontra or any of its affiliates by virtue of providing the Services. None of the Services or content shall constitute or be construed as a recommendation, solicitation, offer, opinion, by Ontra or any of its Affiliates for any financial transaction, the purchase of a financial instrument, including but not limited to securities, or any kind of investment.

In accordance with the Digital Millennium Copyright Act (“DMCA), Ontra has adopted a policy that provides for the removal of any End User Content that infringes on the rights of Ontra or of a third party or that violate intellectual property rights generally. Ontra reserves the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users and (2) remove and discontinue service to repeat offenders.

Copyright Infringement. If you have evidence, know, or have a good faith belief that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please provide Ontra with a notice of copyright infringement containing the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit Ontra to locate the material and verify its existence; (iv) information reasonably sufficient to permit Ontra and/or our Copyright Agent to contact you, such as an address, telephone number, and, if available, email address; (v) 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 owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

The above-written information must be sent to our registered Copyright Agent:

Copyright Agent c/o InCloud, LLC, 2041 East Street PMB39, Concord, CA 94520, [email protected]

Upon receipt of a proper notice of copyright infringement, we reserve the right to: (x) remove or disable access to the infringing material; (y) notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and (z) terminate such content provider’s access to the Services if he or she is a repeat offender.

If you believe that your End User Data that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your End User Data, you may send a written counter-notice containing the following information to the Copyright Agent: (1) your physical or electronic signature; (2) identification of the end user data that has been removed or to which access has been disabled and the location at which the end user data appeared before it was removed or disabled; (3) a statement that you have a good faith belief that the end user data was removed or disabled as a result of mistake or a misidentification of the end user data; and (4) your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the Federal Court in the judicial district in which your address is located, or, if your address is located outside the United States, for any judicial district in which Ontra is located, and that such person or entity 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, Ontra may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed End User Data or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the End User Data provider, member, or user, the removed End User Data may be replaced, or access to it restored, in 14 business days or more after receipt of the counter-notice, at Ontra’s sole discretion.

Except as may be specified in an applicable Customer Agreement, these Terms constitute the entire agreement between you and Ontra with respect to the subject matter described herein and supersedes any and all other agreements, whether written or oral, or communications with Ontra regarding the Services. In the event of any inconsistency or conflict between these Terms and any Customer Agreement, the terms of the Customer Agreement will prevail with respect to your use of the Services as an Authorized User on behalf of the Customer. You may not assign, novate or otherwise transfer any rights or obligations under these Terms without Ontra’s prior written consent. Any attempted or purported assignment, delegation or other transfer by you without such consent shall be void. We may transfer, assign, or delegate these Terms and our rights and obligations without consent. Except as expressly set forth herein, you and Ontra agree there are no third-party beneficiaries intended under these Terms. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable and such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any of Ontra’s rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver by Ontra thereof, and no single or partial exercise of any right, remedy, power, or privilege under these Terms will preclude any other or further exercise thereof by Ontra or the exercise of any other right, remedy, power, or privilege by Ontra. Except as explicitly set forth herein, no other act, document, usage, custom or course of dealing shall be deemed to amend or modify these Terms.

BY ACCEPTING THESE TERMS AND CONTINUING TO ACCESS OR USE THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS.