CloudQuant User Agreement
Last revised: October 19, 2018
This User Agreement (“User Agreement”) governs your access to and use of our CloudQuant software, tool, platform, services and website at CloudQuant.com (“CloudQuant Website”) and the online resources related to them, including as any of them may be changed from time to time (in whole or in part, including the CloudQuant Website, the “CloudQuant Services”). CloudQuant LLC, a Delaware limited liability company (along with its affiliates from time to time, “CloudQuant,” “we” or “us”), is the owner and provider of the CloudQuant Services. This User Agreement is an agreement between CloudQuant and you, the individual who registers on the CloudQuant Website for access to the CloudQuant Services (“you”).
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. CloudQuant Services
The CloudQuant Services enable you to test your code, strategies, algorithms, ideas, recommendations, methods, designs, plans, techniques, processes, calculations, analyses, and to provide feedback, comments, data and other information (excluding personal information). Everything you submit to the CloudQuant Services is “Input.” By processing your strategy or algorithmic Input and generating an output via the CloudQuant Services, the CloudQuant Services generates a backtested performance report or other similar type of investment performance and metrics (“Output”). You may view the Output by accessing the CloudQuant Services.
The CloudQuant Services contain content contributed by you (your Input), by CloudQuant, by other registered members of CloudQuant, and by third-party commercial partners of CloudQuant. Content provided by third parties, either registered members of CloudQuant or third-party commercial partners is referred to as “Third Party Content.” The content provided by CloudQuant (including all Output, materials, documents, text, software, code (HTML and otherwise), graphics, trademarks, logos, images, audio and video) and data in the CloudQuant Services (other than Input) is referred to as (“Our Content”). Each of you, CloudQuant or the third parties may post content to publicly available portions of the CloudQuant Website and this is referred to as “Shared Content.” CloudQuant is not responsible for the Third Party Content or Shared Content and any use you make of the Third Party Content or Shared Content is at your own risk.
Excluding your Input, you acknowledge that we and our licensors have and shall continue to have exclusive ownership of the CloudQuant Services, Our Content, the look and feel, design and organization of the CloudQuant Website, the compilation of the content, code and data on or in the CloudQuant Services, and the processes, inventions, materials and data used by CloudQuant other than Input, and all worldwide copyrights, patent rights, trademarks, rights in designs, rights in confidential information, trade secret rights and other intellectual property rights and registrations and applications for registrations (collectively, “IP”) in, to or related to any of the foregoing.
To the extent that you have or obtain any such IP, you hereby transfer and assign and agree to transfer and assign (or shall procure the transfer and assignment of) such IP to us fully and unconditionally on a perpetual, royalty-free and worldwide basis and agree to execute such documents as we may request to memorialize or perfect any transfer or assignment.
If you are a copyright holder in any content found on the CloudQuant Website and you believe someone using the CloudQuant Website has infringed a right that you hold under U.S. copyright laws, please let us know by contacting us at email@example.com. In your email, please identify your name and contact information, the identity of the copyrighted work you believe to have been infringed, and the identity of the content you believe is infringing. Complaints that are incomplete may not be processed. Please note that pursuant to 17 U.S.C. § 512(f), any person who materially misrepresents facts about infringing material or activity is liable to us for any damages, including our costs and attorneys’ fees.
4. Your Licenses to CloudQuant (Rights You Grant to Us)
In consideration of your use of the CloudQuant Services, you hereby grant to us a royalty-free, worldwide, fully transferable, sublicensable, irrevocable, non-exclusive, perpetual right and license to (a) use any and all Input you provide for the purpose of providing the CloudQuant Services to you, including any Optional Services you subscribe to, and (b) evaluate and test the Input. If you post your Input in the public areas of the CloudQuant Services as Shared Content, you hereby grant to us and to others a royalty-free, worldwide, fully transferable, sublicensable, irrevocable, non-exclusive, perpetual right and license to use, reproduce, prepare derivative works of, distribute, perform, display, import and sell that Shared Content in any form, media or technology. These rights you grant us are collectively, “Your Licenses.” You confirm that you have the right to grant Your Licenses to CloudQuant. If you do not have the right, or are unsure of your right to grant Your Licenses, do not submit Input to the CloudQuant Services. You are responsible, and shall indemnify CloudQuant, for any losses arising from or resulting from any claims that your provision of the Input to the CloudQuant Services infringes a third party’s rights.
CLOUDQUANT HAS NO OBLIGATION OF ANY KIND UNDER THIS USER AGREEMENT TO PROVIDE ANY COMPENSATION TO YOU RELATING TO YOUR LICENSES OR ANY INPUT.
5. User Licenses (Our Licenses To You)
Subject to your compliance with this User Agreement and in consideration of Your Licenses, we hereby grant to you:
- a royalty-free, non-transferable, non-exclusive, revocable right and license to access and use the CloudQuant Services in those jurisdictions from we provide access to the CloudQuant Services for as long as you are a registered user (subject to our right to terminate under this User Agreement), and
- a royalty-free, transferable, sublicensable, non-exclusive, perpetual right and license, subject to your obligations under this User Agreement, to freely use, exploit, and prepare derivative works based upon Output.
6. Your User Account
You do not need to register for an account to use certain features of the CloudQuant Services. If you choose to create an account on the CloudQuant Website, you may create only one such account and must provide accurate and complete registration information for such account. When you register on the CloudQuant Website, you will create a unique user ID and an associated password. You are solely responsible for the safeguarding of this user ID and password and for maintaining the confidentiality of your account. You are responsible for all activities that occur under your account. You must immediately notify us of any unauthorized use, or suspected unauthorized use, of your CloudQuant account, user ID or password, or any other breach of security. Your account is non-transferrable and may not be sold, combined, or shared with another person. By registering on the CloudQuant Website or accessing or using the CloudQuant Services, you represent and warrant that you have not impersonated any person. If you falsify information or commit fraud with respect to your account or otherwise violate this User Agreement, we may terminate your account and pursue legal action against you for any damages we suffer as a result of such actions. We reserve the right to limit or terminate your account or access to the CloudQuant Services in our sole discretion. If we terminate your account, you may not re-register for the CloudQuant Services except with our express written permission.
7. Your Representations and Warranties
You represent and warrant to us as of the date of your registration to access and use the CloudQuant Services and as of each date that you access or use the CloudQuant Services as follows:
- You are the sole owner of the Input and all IP in the Input, and you have full power and authority to enter into and perform this User Agreement, grant Your Licenses, and submit the Input to the CloudQuant Services for the purposes stated in this User Agreement.
- We may use the Input as permitted in this User Agreement without violating any applicable law, rule or regulation or the IP or other rights of any third party, or any license, sublicense, covenant or contract between you and any third party and there is currently no actual or threatened claim, demand, or suit by any third party based on alleged violation of any of the foregoing.
- None of the Input or any IP related to it was created in the course of performing a service for any third party, or within the scope of any current or former employment relationship or using equipment, information, or trade secrets or other intellectual property of a current or former employer.
- The execution, delivery and performance of this User Agreement does not conflict in any material respect with any agreement, court order or judgment to which you are a party or by which you are bound.
8. Availability of CloudQuant Services
While we use reasonable efforts to keep the CloudQuant Services accessible, complete and error-free, errors, omissions, interruptions of service and delays may occur at any time as a result of circumstances, both within and beyond our control. We do not accept, and hereby expressly disclaim, any liability that arises from any errors, omissions, interruptions or delays relating to the CloudQuant Services, including any Output. Furthermore, we are not responsible for maintaining any Input or Output, and we may delete or destroy any Input or Output (in any form provided to, or held by us) at any time. We reserve the right, at any time or from time to time, to make any changes to the CloudQuant Services or deny access to the CloudQuant Services to anyone, or to any account, at any time, for any reason without notice.
If CloudQuant believes there is a risk that may interfere with the proper continued provision of the CloudQuant Services, we may immediately suspend, filter, block access to or take other appropriate action, including mitigation of risk, to protect the integrity of the CloudQuant Services. If CloudQuant determines that you are misusing the CloudQuant Services by bypassing or attempting to bypass any security features, launching denial of service attacks, disabling security devices, using any malware, or otherwise gaining or attempting to gain unauthorized access to the CloudQuant Services, or are or may be engaged in illegal activity, then CloudQuant may suspend or permanently terminate your access to the CloudQuant Services.
9. Acceptable Use Policy
When you are accessing or using the CloudQuant Services, including submitting any Input, you shall not:
- Intentionally or unintentionally violate this User Agreement, any applicable local, state, national or international law, or any rules and regulations having the force of law;
- Create user accounts by automated means, knowingly submit false or misleading information to us, or impersonate any person, misrepresent your affiliation with a person or entity, or use a false identity;
- Access or use the account of another user without permission;
- Use the CloudQuant Services to harass, defame, disparage, abuse or invade the privacy any other person or entity;
- Upload, submit, post or transmit Input that you do not have the legal authority to upload, post or transmit;
- Make any commercial use of the CloudQuant Website or the CloudQuant Services, which includes, without limitation, resale, charging access or use fees, redistribution, or creating derivative works based on it;
- Use the CloudQuant Services in any manner that violates, infringes, misappropriates or violate any third party’s rights, including without limitation, submitting or transmitting any Input that may infringe, misappropriate or violate a third party’s rights of publicity, contractual rights, privacy rights or intellectual property rights, or using Our Content or Third Party Content without our permission;
- Replicate, copy, import, export, data mine, download, distribute, market, scan, scrape or otherwise deliver the CloudQuant Services (or any content (other than Shared Content) in it) to anyone else;
- Reverse engineer, reverse compile, reverse assemble or do any other similar operation with the CloudQuant Services;
- use any engine, software, tool, agent or other device or mechanism to navigate or search CloudQuant, other than the search engines and agents available through CloudQuant and other than generally available third party web browsers or access or use CloudQuant by any means other than through interfaces provided by CloudQuant;
- Transmit or submit any materials that are encrypted or contain viruses, ransomware, Trojan horses, worms, time bombs, spiders, cancelbots or other computer programming routines that are likely or intended to do damage, interfere with, disrupt, impair, disable or otherwise overburden the CloudQuant Services;
- Attempt to bypass, disrupt, interrupt or interfere with, disrupt, impair, disable or otherwise overburden the CloudQuant Website or the CloudQuant Services;
- attempt to gain unauthorized access to the CloudQuant Services through hacking, password mining or any other means;
- manipulate or otherwise display the CloudQuant Services by using framing or similar navigational technology;
- send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or other form of duplicative or unsolicited messages, whether commercial or otherwise;
- Assist any third party in engaging in any activity prohibited by this User Agreement;
- or introduce any software subject to a license or another’s copyright; or
- remove, obscure, or alter any copyright notice, trademark, or other proprietary rights notices affixed to or contained within the CloudQuant Services or the Output.
- download, transmit, copy, or attempt to copy any Third Party Content, or Third Party data, or Our Content which includes market data, trading signals, alternative data, fundamental data, or symbology mappings.
- Modify, or attempt to modify any Third Party Content, or Third Party data, or Our Content which includes market data, trading signals, alternative data, fundamental data, or symbology mappings.
- Create derivative data files from Third Party Content, or Third Party data, or Our Content for the purposes of bypassing the prohibitions of downloading, transmitting, or copying Third Party Content, or Third Party data, or CloudQuant data.
- Attempt to reverse engineer, reverse engineer for purposes of identifying raw inputs of or proprietary methods used, recreate, redistribute, duplicate, encrypt, derive from or otherwise create a competitive product or derivative dataset from Third Party Content, or Third Party data, or Our Content for purposes of bypassing the prohibitions of downloading, transmitting, or copying Third Party Content, or Third Party data, or Our Content.
We reserve the right (but have no obligation) to review, edit and delete any of your Input, including Shared Content you provide, and investigate and take appropriate action against you in our sole discretion if you violate this User Agreement or otherwise create liability for us or any other person. Our action may include any of the following: removing or modifying Input, including Shared Content you provide, terminating your account or reporting you to law enforcement authorities.
10. Other Activities
In providing the CloudQuant Services, CloudQuant is not: (a) advising you or making any recommendation to you to buy, sell or hold any security or commenting on the suitability of any security for you or anyone else; or (b) making any determination, endorsement or evaluation that any trading strategy is suitable or appropriate for you or anyone else’s use. You acknowledge that affiliates of CloudQuant may trade securities based upon strategies that may be similar to, different from, or contrary to your Input or any Output. CloudQuant shall have no liability to you under this User Agreement as a result of these activities. You shall not sue any of CloudQuant, or its affiliates, directors, officers or employees, under any theory of liability, in the event that CloudQuant or any of its affiliates, clients or other registered users of the CloudQuant Services implements any investment strategy or trading protocol, including any algorithm, which is similar in approach to any Input or has attributes in common with any Input.
If you provide us any feedback or suggestions regarding the CloudQuant Services (“Feedback”), you hereby assign to us all rights in the Feedback and agree that we have the right to use the Feedback and related information in any manner we deem appropriate. We will treat any Feedback you provide to us as non-confidential and non-proprietary. You agree that you will not submit to us any information or ideas that you consider to be confidential or proprietary.
12. Security of Transmitted Information
CloudQuant does not control the security of the Internet or other networks that you may use to access the CloudQuant Services or to transmit information to us, including Input. CloudQuant is not responsible for the loss of any data or the security of the Input or any information that you submit or transmit to the CloudQuant Services.
13. Third Party Content
CloudQuant is a distributor (and not a publisher) of Third Party Content provided by information providers, advertisers, and other registered users of CloudQuant. Except to the extent that we seek to enforce our rights under this User Agreement, we do not have editorial control over any Third Party Content. Any reliance you place on Third Party Content is therefore at your own risk. Your use of Shared Content is at your own risk and your interactions with other user of the CloudQuant Services are solely between you and that user.
Copying, Downloading, Transmitting, or replicating Third Party Content is strictly prohibited. Creating derivative data of Third Party Content for the purposes of bypassing the prohibition on replicating Third Party Content is strictly prohibited. Attempts, successful or not, to replicate these proprietary is theft of intellectual property and is a violation of our terms of service. Theft of intellectual property may result in the termination of your account. We reserve the right to pursue legal action against you for any damages (including data licensing fees, legal fees, or penalties) we, or our third party providers suffer as a result of such actions.
14. Optional Services
From time to time, CloudQuant may make available to you Optional Services in the manner and for the fees set forth in the applicable supplemental terms for such services. If and when both you and CloudQuant agree to the supplemental terms for Optional Services, they are incorporated by reference into this User Agreement and the Optional Services are included in the CloudQuant Services for purposes of this User Agreement.
YOUR ACCESS AND USE OF THE CLOUDQUANT SERVICES IS ENTIRELY AT YOUR OWN RISK. THE CLOUDQUANT SERVICES, AND ANY THIRD PARTY CONTENT POSTED ON THE CLOUDQUANT WEBSITE, ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTIES OF ANY KIND. ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. WE MAKE NO WARRANTY THAT THE CLOUDQUANT SERVICES OR ANY OUTPUT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE THROUGH USERS OF THE CLOUDQUANT SERVICES, OR ANY USER CONTENT POSTED ON OR ACCESSIBLE FROM THE CLOUDQUANT WEBSITE. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE CLOUDQUANT SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THIS USER AGREEMENT. IF YOU ARE DISSATISFIED WITH ANY OF THE MATERIALS, CONTENT OR USER CONTENT CONTAINED IN THE CLOUDQUANT SERVICES, OR WITH ANY OF THE TERMS OF THIS USER AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE CLOUDQUANT SERVICES.
THE CLOUDQUANT SERVICES PRODUCE AN ESTIMATE OF THE PAST INVESTMENT RESULTS OR OTHER PERFORMANCE RATIOS OF A SELECTED PORTFOLIO AND DO NOT PREDICT FUTURE TRADING RESULTS OR PERFORMANCE OF ANY STRATEGY OR ALGORITHM, WHICH MAY VARY SIGNIFICANTLY FROM THE RESULTS INDICATED BY THE OUTPUT. ALL OUTPUT IS FOR INFORMATIONAL PURPOSES ONLY. NOTHING PROVIDED THROUGH THE CLOUDQUANT SERVICES CONSTITUTES INVESTMENT ADVICE OR SHOULD BE CONSTRUED AS AN OFFER OR SOLICITATION TO BUY OR SELL ANY SECURITY. ALTHOUGH THE CLOUDQUANT SERVICES MAY INCLUDE INVESTMENT-RELATED INFORMATION, NOTHING PROVIDED THROUGH THE CLOUDQUANT SERVICES IS OR SHOULD BE CONSTRUED AS A RECOMMENDATION TO PURCHASE, SELL OR HOLD ANY SECURITY OR OTHER INVESTMENT, OR TO PURSUE ANY INVESTMENT STYLE OR STRATEGY. WE DO NOT GIVE ANY ADVICE OF ANY KIND OR MAKE ANY REPRESENTATIONS THROUGH THE CLOUDQUANT SERVICES AS TO WHETHER ANY STRATEGY, ALGORITHM, SECURITY OR INVESTMENT IS SUITABLE TO YOU OR WILL BE PROFITABLE. NOTHING PROVIDED THROUGH THE CLOUDQUANT SERVICES IS INTENDED TO BE, AND YOU SHOULD NOT CONSIDER ANYTHING PROVIDED THROUGH THE CLOUDQUANT SERVICES TO BE, INVESTMENT, ACCOUNTING, TAX, FINANCIAL, LEGAL OR OTHER ADVICE. IF YOU WOULD LIKE INVESTMENT, ACCOUNTING, FINANCIAL, TAX LEGAL OR OTHER ADVICE, YOU SHOULD CONSULT WITH YOUR OWN FINANCIAL ADVISORS, ACCOUNTANTS OR ATTORNEYS REGARDING YOUR INDIVIDUAL CIRCUMSTANCES AND NEEDS.
You shall defend, indemnify and hold harmless CloudQuant, its affiliates, any fund, account or other client for which we provide services and the respective directors, officers, employees, agents and licensors of any of the foregoing (collectively, the “Indemnitees”), from and against any and all claims, actions, proceedings, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the CloudQuant Services or any Output, (b) your violation of this User Agreement, including any representation or warranty, or (c) your breach or violation of (i) any applicable law relating to this User Agreement or the CloudQuant Services, or (ii) any third party right, including without limitation any copyright, property, or privacy right.
17. Limitations of Liability
UNDER NO CIRCUMSTANCES SHALL WE OR ANY OF THE INDEMNITEES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOST BUSINESS, SALES, REVENUE, SAVINGS OR OTHER PROFIT (WHETHER IN CONTRACT OR TORT AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), IN EACH CASE ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, ANY ASPECT OF YOUR ACCESS TO OR USE OF THE CLOUDQUANT SERVICES OR ANY OUTPUT, YOUR PROVISION OF INPUT, OR FROM MISTAKES, OMISSIONS, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE OF ANY KIND, WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE CLOUDQUANT SERVICES, FROM THE INABILITY TO USE THE CLOUDQUANT SERVICES OR THE INTERRUPTION, SUSPENSION, ALTERATION, OR TERMINATION OF THE CLOUDQUANT SERVICES. SUCH LIMITATION WILL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED THROUGH CLOUDQUANT. IN STATES THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. IN ALL EVENTS, THE AGGREGATE LIABILITY OF CLOUDQUANT, THE INDEMNITEES AND ANY OTHER PARTY, IF ANY, INVOLVED IN CREATING, ADMINISTRATING, PRODUCING OR DISTRIBUTING THE CLOUDQUANT SERVICES SHALL BE LIMITED IN THE AGGREGATE TO $1,000.
THE LIMITATION OF LIABILITY SET FORTH ABOVE SURVIVES ANY REMEDY’S FAILURE OF ESSENTIAL PURPOSE TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW. YOU AGREE THAT THE REMEDIES, DISCLAIMERS, LIMITATIONS AND INDEMNITY SET FORTH IN THESE TERMS ALLOCATE THE RISKS BETWEEN US AND YOU AS AUTHORIZED BY APPLICABLE LAWS. THE ABSENCE OF MONETARY FEES PAID FOR THE CLOUDQUANT SERVICES REFLECT AND ARE SET IN RELIANCE UPON THIS ALLOCATION OF RISK AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT.
18. Governing Law
This User Agreement is governed by and All disputes arising under, arising out of, or in connection with this User Agreement will be resolved exclusively in accordance with the laws of the State of Texas, excluding its conflict of laws provisions. YOU HEREBY WAIVE ANY RIGHT YOU MIGHT HAVE TO RESOLVE ANY DISPUTE ON ANY BASIS (INCLUDING, BUT NOT LIMITED TO A CLASS ACTION BASIS) INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR OTHER PERSONS SIMILARLY SITUATED. Any cause of action you may have with respect to us or the CloudQuant Services must be commenced within one year after the claim or cause of action arises, or you hereby expressly agree that such claim or cause of action will be barred.
19. Arbitration; Jury Trial Waiver; Class Action Waiver; and Venue
The following applies to all controversies, disputes, demands, counts, claims, or causes of action (“Disputes”) between you and CloudQuant arising out of, under, or related to this User Agreement or our privacy practices (including any action we take or authorize with respect to information about or provided by you):
- All Disputes will be settled exclusively through binding arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) and will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
- You are GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this User Agreement EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
- You and CloudQuant must abide by the following rules: (i) for any claim that could otherwise be brought in small claims court, the arbitration shall be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (ii) if the claim exceeds what can be recovered in a small claims court, the arbitration shall be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to-face hearing is appropriate, in which case one should be held at a location agreed to by you and CloudQuant, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (iii) the arbitrator’s ruling is binding and not merely advisory; (iv) ANY CLAIMS BROUGHT BY YOU OR CLOUDQUANT MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (v) 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; (vi) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, CloudQuant shall pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (vii) a decision by the arbitrator (including any finding of fact or conclusion of law) against either you or CloudQuant will be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person/CloudQuant user; and (viii) each side pays its own attorneys’ fees and expenses.
- In addition, if you are a user registered outside of the United States, the dispute resolution provision in our Privacy Statement (if any), and not this arbitration provision, shall apply to any disputes related to privacy. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret will not be subject to this arbitration provision. Such claims shall be exclusively brought in the state courts located in the city of Austin in Travis County or the federal courts located in the Western District of Texas, Austin Division. Additionally, notwithstanding this arbitration provision, either party may seek emergency equitable relief before such courts in order to maintain the status quo pending the arbitrator’s ruling, and hereby agree to submit to the personal jurisdiction of such courts. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
- With the exception of subparts (iv) and (v) in subsection (c) of this arbitration provision (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subsection (c) or (d) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor CloudQuant shall be entitled to arbitration. If this arbitration provision is held unenforceable by a court, or AAA refuses to arbitrate the dispute, all controversies, disputes, demands, counts, claims, or causes of action between you and CloudQuant shall be exclusively brought in the state or federal courts specified in subsection (d) above.
- For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
CloudQuant may terminate, modify, discontinue or abandon the CloudQuant Services with or without notice to you, and we shall not be liable to you or any third party as a result of such termination, modification, discontinuance or abandonment. You may terminate your account on the CloudQuant Website at any time, for any reason, by following the instructions at www.cloudquant.com. If this User Agreement is terminated for any reason, the provisions of Sections 2, 9, 11, 15, 16, 17, 18, 19, 20 and 23 will survive any such termination.
21. Changes to the User Agreement
We reserve the right, in our sole discretion, to modify, alter or otherwise update this User Agreement from time to time by posting the changes on the CloudQuant Website and by sending you an email to your last known email address, which emails you hereby consent to receive. Your continued use of the CloudQuant Services following the posting of any such changes to the User Agreement constitutes your affirmative acknowledgment of the changes and your agreement to abide and be bound by the User Agreement as modified. If you do not agree to the revised User Agreement, your only recourse is to discontinue the use of the CloudQuant Services.
22. Electronic Communication and Signatures
You consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. By electronically indicating your agreement to this User Agreement, you acknowledge and agree that: (a) you intend to form a legally binding contract between you and us; (b) you have read and agree to the provisions of this User Agreement; (c) you agree and intend this User Agreement to be the legal equivalent of signed, written contracts, and equally binding; and (d) YOU CONSENT TO US USING YOUR EMAIL ADDRESS, TELEPHONE AND/OR CELL PHONE NUMBER THAT YOU PROVIDE TO US TO CONTACT YOU BY AUTOMATED OR MANUAL EMAILS, TELEPHONE CALLS AND/OR TEXT MESSAGES TO PROVIDE YOU WITH OR SOLICIT INFORMATION REGARDING CLOUDQUANT, INPUT TO AND OUTPUT FROM THE CLOUDQUANT SERVICES, COMPETITIONS WE MAY HOLD, OPTIONAL AND THIRD PARTY SERVICES, AND OTHER BUSINESS OPPORTUNITIES.
Your use of the CloudQuant Services is not authorized in any jurisdiction that does not give effect to all provisions of the terms and conditions of this User Agreement. This User Agreement constitutes the complete and entire agreement between you and CloudQuant and supersedes any prior or contemporaneous agreements or understandings between you and CloudQuant, whether oral, written or electronic, regarding the subject matter of this User Agreement. No waiver of any provision of this User Agreement, or any rights or obligations of either party under this User Agreement, will be effective, except pursuant to a written or electronic record authenticated by the party or parties waiving compliance, and any such waiver will be effective only in the specific instance and for the specific purpose stated in such record. If any term or provision of this User Agreement is held to be invalid, void or unenforceable, then the remainder of this User Agreement will not be affected, impaired or invalidated, and each such term and provision of this User Agreement will be valid and enforceable to the fullest extent permitted by law. Our rights and remedies under this User Agreement are cumulative, and the exercise of any such right or remedy will not limit our right to exercise any other right or remedy. You shall not assign, convey, transfer, subcontract or delegate this User Agreement or any of your rights, duties or obligations hereunder without the express, prior consent of CloudQuant pursuant to a written or electronic record. All notices must be in writing or in an electronic record and will be deemed duly given when sent by registered or certified mail (return receipt requested) or when sent by electronic mail. Notices to CloudQuant must be sent to: CloudQuant LLC, Attn: Member Support, 1825B Kramer Lane, Suite 200, Austin, TX 78758, and legal@CloudQuant.com. All notices will be directed to CloudQuant at the addresses given above and to you at the e-mail address you have electronically registered with CloudQuant or to such other address as either party may, from time to time, provide to the other party in accordance with this notice provision.