Effective July 1th, 2022.
Effective July 1th, 2022
THROUGH BINDING, INDIVIDUAL ARBITRATION (INSTEAD OF GOING TO COURT BEFORE A JUDGE AND JURY) AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
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Please read these Terms carefully and check them regularly as they may change from time to time, per Section 3, below.
PLEASE NOTE: Each of the promotional sweepstakes (the “Experiences”) offered on the Website are also governed by additional terms and conditions. Prior to participating in any Experience please carefully read the Experience Rules and the Official Rules.
2. YOUR ACCEPTANCE OF THESE TERMS:
These Terms constitute a binding contract between you and CLOUDNINE. Your use of the Services in any way
signifies that you accept and agree to these Terms, including any modifications that CLOUDNINE makes from time to time. If you do not wish to be bound by these Terms, you may not access or use the Service.
3. CHANGES TO THESE TERMS:
CLOUDNINE may modify these Terms at any time, in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes. You are responsible for checking these Terms regularly to ensure that you understand the Terms that apply at the time of your access to or use of the Services.
4. AGE REQUIREMENT:
You must be at least 18 years old, or the age of legal majority in your jurisdiction of residence, to use the Services.
5. ACCESS TO THE SERVICES:
The Services are offered only for your personal, non-commercial use, and not for the use or benefit of any third-
party. We may, in our sole discretion, change, modify and/or refuse to offer some of all the Services to any person and change the eligibility criteria at any time. Any right to access and use the Services is automatically revoked where these Terms, or use of the Services, is prohibited or conflicts with any applicable law, rule, or regulation.
(A) LIMITING OR MODIFYING THE SERVICES: We reserve the right to withdraw, limit or otherwise modify the Services, in our sole discretion without notice. We will not be liable if for any reason all or any portion of the Services are unavailable at any time or for any period.
(B) INTERNET ACCESS: You are solely responsible for making allarrangements necessary for you to have access to the Services, including, without limitation, securing internet connections, and for anytelecommunication fees.
6. ACCOUNT REGISTRATION AND SECURITY:
To enjoy full access and use of our Services, you may be asked to provide certain registration details or other
information so to create a user account (an “Account”).
(A) ACCOUNT INFORMATION: It is a condition of your use of the Services that all the information you provide is correct, current, and complete. You may not use someone else’s name, or any name, location, other public profile
information or image that violates any third-party rights, is against the law, or that is offensive, obscene, or otherwise objectionable. You agree to promptly notify us if any of your information changes or is inaccurate.
(B) ACCOUNT SECURITY: Your account is for your personal use only. You may not allow others to use your Account and may not or transfer your Account to any other person or entity. You must safeguard the confidentiality of your
password, and if you are using a device that others have access to, log out of your account after using the Services. You are responsible for all activity that occurs under your account, including any activity by unauthorized users. If you suspect or know of unauthorized access to your account, change your password and immediately notify CLOUDNINE by sending an email email@example.com
7. TERMINATION OF RIGHT TO USE; ACCOUNT DELETION:
We have the right to suspend, delete and/or disable any Account (or any part thereof) or block or remove any User Contribution (as defined in Section 11, below) for any lawful reason, including if we determine that you have violated these Terms or that your conduct or User Contribution would tend to damage CLOUDNINE’s reputation or goodwill. If CLOUDNINE deletes your account or terminates your permission to use the Services, you may not re-register for or continue to use the Service under any other email or Account without explicit permission by CLOUDNINE.
information we may collect about you, (B) what we use that information for,
and (C) with whom we may share your information.
9. LIMITED PERMISSION TO USE THE SERVICES:
(A) LIMITED LICENSE: Subject to your compliance with these Terms and
solely for so long as you are permitted by us to access and use the Services,
CLOUDNINE grants to you a revocable, limited, non-exclusive, non-
transferable, non-sublicensable, non-assignable license to use the Services for
your personal, non-commercial use only. You may not copy, modify, reverse
engineer, disassemble, or create derivative works based on the Services,
distribute, sell, grant rights in or to the Services, publicly display, republish,
download, store, or transmit any of the Services, except as follows:
i. Your computer may temporarily store copies of such materials in RAM
incidental to your accessing and using the Services.
ii. You may store files that are automatically cached by your web browser for
display enhancement purposes.
iii. You may print or download one copy of a reasonable number of pages of
the Website for your own personal, non-commercial use and not for further
reproduction, publication, or distribution.
iv. If we provide desktop, mobile, or other applications for download, you may
download a single copy to your computer or mobile device solely for your own
personal, non-commercial use, provided you agree to be bound by our end
user license agreement for such applications.
v. If we provide social media features with certain content, you may take such
actions as are enabled by such features.
This license will remain in effect unless and until you violate these Terms, or
this license is terminated by you or CLOUDNINE. Any use of the Services not
expressly permitted by these Terms is a breach of these Terms and may
violate copyright, trademark, and other laws. CLOUDNINE, in its sole
discretion, may at any time for any reason suspend or terminate any license
hereunder without prior notice.
(B) CLOUDNINE INTELLECTUAL PROPERTY: The interfaces, content,
arrangement and layout of the Website including, but not limited to, the
CLOUDNINE trademark and logo, designs, text, artwork, graphics, images,
buttons, user interfaces, information, and other content, and any compilation
of the foregoing (“CLOUDNINE Intellectual Property”) are the property of
CLOUDNINE, except where otherwise noted, and are protected from copying,
imitation, communication, or simulation under United States, Czech Republic
and international laws and may not be reproduced, modified, communicated,
displayed, distributed, or transmitted without the prior written permission of
CLOUDNINE. All modifications and enhancements to the Services remain the
sole property of CLOUDNINE. You understand and acknowledge that, by using
the Services, you do not acquire or obtain by implication or otherwise, any
license or right to use any of the CLOUDNINE Intellectual Property in any
manner not expressly permitted under these Terms.
10. GENERAL PROHIBITIONS AND CLOUDNINE’S ENFORCEMENT
You may use the Services only for lawful purposes and in
accordance with these Terms. Additionally, you agree that you will not do any
of the following:
(A) Impersonate or misrepresent your affiliation with any person or entity.
(B) Interfere, or attempt to interfere, with the proper working of the Services.
(C) Use the Services, or any portion thereof, for any commercial purpose or for
the benefit of any third-party or in any manner not permitted by these Terms or
permitted expressly in writing by CLOUDNINE.
(D) Attempt to decipher, decompile, disassemble, or reverse engineer any of
the software used to provide the Services.
(E) Access, tamper with, or use non-public areas of the Services,
CLOUDNINE’s computer systems, or the technical delivery systems of
(F) Attempt to probe, scan or test the vulnerability of any CLOUDNINE system
or network or breach any security or authentication measures.
(G) Avoid, bypass, remove, deactivate, impair, descramble or otherwise
circumvent any technological measure implemented by CLOUDNINE or any of
CLOUDNINE’s providers or any other third-party (including another user) to
protect the Services, systems, or other content.
(H) Bypass any territorial restrictions, including IP address-based restrictions,
that may be applied to the Services.
(I) Use the Services in any manner that could disable, overburden, damage, or
impair the Website or interfere with any other party’s use of the Services,
including their ability to engage in real time activities through the Website.
(J) Use any robot, spider, or other automatic device, process, or means to
access the Services for any purpose, including monitoring or copying any of
any information or materials.
(K) Use any manual process to access, monitor or copy any information or
materials, or for any other purpose not expressly authorized in these Terms,
without our prior written consent.
(L) Collect or store any personally identifiable information from other users of
(M) Use any device, software, or routine that interferes with the proper
working of the Services.
(N) Introduce any viruses, Trojan horses, worms, logic bombs, or other
material that is malicious or technologically harmful.
(O) Attempt to gain unauthorized access to, interfere with, damage, or disrupt
any parts of the Website of Software, the servers on which the Website of
Software are stored, or any other server, computer, or database connected to
(P) Attack the Website, or any other server, computer, or database connected
to the Services, via a denial-of-service attack or a distributed denial-of-service
(Q) Use, display, mirror or frame the Services or any individual element within
the Services, CLOUDNINE’s name, any CLOUDNINE trademark, logo or other
proprietary information, or the layout and design of any page or copy
contained on a page, without CLOUDNINE’s express written consent.
(R) Use any meta tags or other hidden text or metadata utilizing a CLOUDNINE
trademark, logo URL or product name without CLOUDNINE’s express written
(S) Forge any TCP/IP packet header or any part of the header information in
any email or newsgroup posting, or in any way use the Services or User
Contributions to send altered, deceptive, or false source-identifying
(T) Send any unsolicited or unauthorized advertising, promotional materials,
email, junk mail, spam, chain letters or other form of solicitation.
(U) Post, upload, publish, submit, or transmit any User Contribution or engage
in any activity that:
i. infringes, misappropriates, or violates a third-party’s patent, copyright,
trademark, trade secret, moral rights or other intellectual property rights, or
rights of publicity or privacy.
ii. violates, or encourages any conduct that would violate, any applicable law
or regulation or would give rise to civil liability.
iii. is fraudulent, false, misleading, or deceptive.
iv. is defamatory, obscene, pornographic, vulgar or offensive.
v. promotes discrimination, bigotry, racism, hatred, harassment or harm
against any individual or group.
vi. is violent or threatening or promotes violence or actions that are
threatening to any person, animal, or entity.
vii. publishes the confidential, proprietary or personal information of any other
person or entity.
viii. exploits minors.
ix. promotes illegal or harmful activities or substances.
(V) Encourage or enable any other individual to do any of the foregoing to
otherwise violate these Terms.
Although we’re not obligated to monitor access to or use of the Services, we
have the right to do so for the purpose of operating the Services, to ensure
compliance with these Terms, to comply with applicable law or other legal
requirements and to maintain the integrity and reputation of the Services and
CLOUDNINE’s systems. We have the right to investigate violations of these
Terms or conduct that affects the Services. We may also consult and
cooperate with law enforcement authorities to prosecute users who violate
11. USER CONTRIBUTIONS:
The Services may include platforms, boards,
profiles, forums, chat features and/or other interactive features (collectively,
the “Interactive Services”) that allow users to post, submit, publish, display, or
transmit to CLOUDNINE, to other users or to other persons generally
(hereinafter, “post”) content or materials through or in connection with the use
of any of our Services (collectively, “User Contributions”). We do guarantee
that other users or third-parties will not use the User Contributions that you
post. If you have ideas and/or information that you want to remain
confidential and/or do not want us or others to use, do not post them. We
shall have no responsibility to evaluate, use or compensate you for any User
Contribution. Further, we are under no obligation to oversee, monitor, or
moderate any Interactive Service we provide. You may be able to remove your
User Contributions by specifically deleting it, but we are not responsible or
liable for the removal or deletion of (or the failure to remove or delete) any of
your User Contributions.
(A) NON-CONFIDENTIAL AND NON-PROPRIETARY: Any User Contribution,
whether publicly posted or privately transmitted, will be considered non-
confidential and non-proprietary.
(B) LICENSE TO USE USER CONTRIBUTIONS: You explicitly grant CLOUDNINE
and its service providers, and each of their and our respective licensees,
successors, and assigns a worldwide, perpetual, irrevocable, non-exclusive,
sublicensable (through multiple tiers), transferable, royalty-free license and
right to use, copy, transmit, distribute, publicly perform and display (through all
media now known or later created), edit, modify, and make derivative works
from your User Contribution (including, without limitation, translations) for any
purpose whatsoever, commercial or otherwise, without any attribution and/or
compensation to you. In addition, you waive any so-called “moral rights” or
rights of privacy or publicity in your User Contribution(s). You further grant all
users of the Services permission to view your User Contribution(s) for their
personal, non-commercial purposes. If you make suggestions to CLOUDNINE
or through the Services about improving or adding new features or products
to the Services or you otherwise provide feedback, product or service reviews
or testimonials, you hereby grant to CLOUDNINE a worldwide, perpetual,
irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable
royalty-free license and right to use, copy, modify, create derivative works
based upon and otherwise exploit your suggestions, feedback, reviews and
testimonials for any purpose (including for marketing), without any notice,
compensation or other obligation to you.
(C) YOUR RESPONSIBILITY FOR YOUR USER CONTRIBUTIONS: Any User
Contribution, whether publicly posted or privately transmitted, is the sole
responsibility of the person who posed such User Contribution. By posting
any User Contribution, you represent and warrant that:
i. You are not a minor.
ii. You represent that you own (or have all rights necessary to grant
CLOUDNINE the license above to) all the User Contributions you may post,
and that CLOUDNINE will not need to obtain licenses from any third-party or
pay royalties to any third-party to use such User Contribution(s).
iii. All of your User Contributions do and will comply with these Terms and any
content standard stated herein.
(D) MONITORING AND ENFORCEMENT: We do not undertake to review all
User Contributions before they are posted have and cannot ensure prompt
removal of objectionable material after it has been posted. Accordingly, we
assume no liability or responsibility to anyone for any action or inaction
regarding transmissions, communications, or content provided by any user or
third-party. We have no liability for the performance or nonperformance of the
activities described in this section. However, we reserve the right to: (i)
remove or refuse to post any User Contribution for any or no reason in our
sole discretion, (ii) take any action with respect to any User Contribution that
we deem necessary or appropriate in our sole discretion, (iii) Disclose your
identity or other information about you to any third party who claims that
material posted by you violates their rights, including their intellectual property
rights or their right to privacy, and (iv) take appropriate legal action for any
illegal or unauthorized use of the Services.
12. THIRD PARTY INTELLECTUAL PROPERTY INFRINGEMENT:
CLOUDNINE respects the intellectual property of others, and we ask our users to do the
same. Each user is responsible for ensuring that their User Contribution does
not infringe any third-party’s right or other intellectual property rights. If you
believe that the Services or any User Contribution contains elements that
infringe or misappropriate your copyrights or other intellectual property rights
(or the intellectual property rights of others), please submit written notice to
IPcloudninecode@epicwin360.com accordance with this section.
(A) COPYRIGHT INFRINGEMENT: If you believe that your work has been
copied in a way that constitutes copyright infringement, please provide us
with a written notice to our copyright agent (contact information below)
containing the following information:
i. Your name, address, telephone number, and email address.
ii. A description of the copyrighted work that you claim has been infringed.
iii. A description of where on the CLOUDNINE Services the material that you
claim is infringing may be found, sufficient for CLOUDNINE to locate the
material (e.g., the URL).
iv. A statement that you have a good-faith belief that the use of the
copyrighted work is not authorized by the copyright owner, its agent, or the
v. A statement by you under penalty of perjury that the information in your
notice is accurate and that you are the copyright owner or authorized to act on
the copyright owner’s behalf.
vi. Your electronic or physical signature.
You may submit this information, or any counter-notice, via:
Email: IPcloudninecode@epicwin360.com (with the subject line “Copyright Notices”)
Mail: CLOUDNINE, s.r.o.
710 00 Ostrava
Attn: Copyright Agent
If properly notified that any materials infringe a third-party’s copyright, we will
promptly remove such materials from the CLOUDNINE Services in accordance
with the U.S. Digital Millennium Copyright Act (“DCMA”), the U.K. Copyright
Designs and Patents Act 1988 (“CDPA”), the U.K. Digital Economy Act 2010
(“DEA”), or equivalent laws which are applicable in other jurisdictions. In
addition, CLOUDNINE may, when appropriate, terminate the Accounts and
license hereunder of repeat copyright infringers.
CLOUDNINE may disclose any communications, including your contact
information, concerning DMCA, CPDA, DEA or other applicable copyright
notices or other intellectual property complaints with third-parties, including to
the users who have posted the allegedly infringing material.
13. THIRD-PARTY PRODUCTS:
Third-party services, content, information, and products may be made available by CLOUDNINE on or through the Website (“Third-Party Products”). Third-Party Products are provided solely for the convenience of our users and CLOUDNINE makes no representations or warranties regarding any Third-Party Products and takes no responsibility and assumes no liability for any Third-Party Products. Third-Party Products are subject to the applicable terms and policies of the third-parties that offer them.
(A) LINKS FROM THE WEBSITE: The Website may contain links to websites operated by other parties. CLOUDNINE provides these links to other websites as a convenience and use of these sites is at your own risk. The linked sites
are not under the control of CLOUDNINE, and CLOUDNINE is not responsible for the content available on the other sites. Such links do not imply CLOUDNINE’s endorsement of information or material on any other site and
CLOUDNINE disclaims all liability regarding your access to and use of such linked websites.
(B) LINKS TO THE WEBSITE: You may not place a link to the Website on another website without our prior written consent and, without limiting the foregoing, you must adhere to CLOUDNINE’s linking policy as follows: (i) the
appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with CLOUDNINE and/or its licensors’ names and trademarks, (ii) the appearance, position and other
attributes of the link may not create the false appearance that your
organization or entity is sponsored by, affiliated with, or associated with
CLOUDNINE, (iii) when selected by a user, the link must display the Website on
full-screen and not within a frame on the linking site, and (iv) CLOUDNINE
reserves the right to revoke its consent to the link at any time and in its sole discretion.
15. DISCLAIMER OF WARRANTIES:
THE SERVICES 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,
WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE
ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. CLOUDNINE
MAKES NO WARRANTY AS TO THE QUALITY, ACCURACY, COMPLETENESS,
OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE
PERFORMANCE OF, THE SERVICES. YOU ARE RESPONSIBLE FOR VERIFYING
ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SERVICES IS AT
YOUR SOLE RISK. CLOUDNINE DOES NOT WARRANT THAT YOU WILL BE
ABLE TO ACCESS OR USE SERVICES AT THE TIMES OR LOCATIONS OF YOUR
CHOOSING; THAT THE OPERATION OF THE SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR
THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL
COMPONENTS. CLOUDNINE PROVIDES NO WARRANTY OR GUARANTY OF
ANY KIND THAT THE SERVICES WILL MEET YOUR EXPECTATIONS OR
REQUIREMENTS. Because some states or jurisdictions do not allow the
disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
You agree to defend, indemnify, release, and hold harmless CLOUDNINE and its parents, subsidiaries, and affiliated companies, and all of their respective past and present officers, directors, employees, agents, and representatives (collectively, the “Released Parties”) from and against any and all claims, expenses, and liability, including but not limited to negligence and damages of any kind to persons or property, including but not limited to invasion of privacy (under appropriation, intrusion, public disclosure of private facts, false light in the public eye or other legal theory), defamation, slander, libel, violation of right of publicity, infringement of trademark, copyright or other intellectual property rights, property damage, or death or personal injury arising out of or relating to (i) your use or misuse of the Website or the Software, (ii) your breach or alleged breach of these Terms, including, but not limited to a breach or alleged breach of any representation or warranty by you in these Terms; (iii) your violation of any law, rule,regulation, or rights of others in connection with your use of the Services, or (iv) infringement, violation, or misappropriation of any copyright, trade secret, or any other intellectual property rights or the violation of any property or privacy right arising from any of the User Submissions that you post on the Website or transmit through the Software.
17. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY:
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE RELEASED PARTIES ARE NOT RESPONSIBLE AND WILL HAVE NO OBLIGATION OR LIABILITY RESULTING FROM (I) INCORRECT OR INCOMPLETE INFORMATION, WHETHER CAUSED BY YOU OR OTHERWISE, TECHNICAL ERRORS, OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED BY CLOUDNINE; (II) TECHNICAL FAILURES OF ANY KIND, INCLUDING, BUT NOT
LIMITED TO OUTAGES, MALFUNCTIONS, INTERRUPTIONS, OR DISCONNECTIONS IN PHONE LINES OR NETWORK HARDWARE OR SOFTWARE OR SCHEDULED OR UNSCHEDULED MAINTENANCE; (III) THE USE OR THE INABILITY TO USE THE SERVICES; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE; (VI) ANY OTHER MATTER RELATING TO THE SERVICES; (VI) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR (VII) ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, OR SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICES, EVEN IF CLOUDNINE AND/OR ITS AFFILIATES HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, CLOUDNINE’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY FOR ANY BREACH OF THESE TERMS AND ANY PROBLEMS OR DISSATISFACTION WITH THE WEBSITE OR ANY PORTION OF THE SOFTWARE IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE USE OF THE WEBSITE AND THE SOFTWARE. Because some jurisdictions do not allow the exclusion or the limitation of liability for
consequential or incidental damages, in such jurisdictions, the liability of CLOUDNINE and its affiliates hereunder shall be limited to the fullest extent permitted by law.
18. BINDING ARBITRATION, NO CLASS ACTION:
Please read this section carefully. You understand and agree that you waive
your right to sue or go to court to assert or defend your rights connected with
(A) MANDATORY ARBITRATION OF DISPUTES: We each 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, including the determination of the scope or applicability of
this arbitration provision (each, a “Claim”) will be resolved solely by binding,
individual arbitration and not in a class, representative or consolidated action
or proceeding. You and CLOUDNINE agree that the U.S. Federal Arbitration
Act (or equivalent laws in the jurisdiction in which the CLOUDNINE entity that
you have contracted with is incorporated) governs the interpretation and
enforcement of these Terms and that this arbitration provision shall survive
termination of these Terms.
(B) CLASS ACTION WAIVER: You and CLOUDNINE each agree that either of us
may bring claims against the other only in an individual capacity, and not as a
plaintiff or class member in any purported class or representative proceeding.
Further, if the parties’ dispute is resolved through arbitration, neither JAMS nor
the arbitrator may consolidate another person’s claims with your claims or
otherwise preside over any form of a representative or class proceeding for
any purpose. If this specific provision is found to be unenforceable, then the
entirety of this Section 18 shall be null and void.
(C) LIMITED REMEDIES: Additionally, except as may be provided for in
Subsection 18(D), below, or prohibited by law, we each agree that, for 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, our remedies are limited to a claim for money damages (if
any) and we each irrevocably waive any right to seek injunctive or equitable
(D) EXCEPTIONS AND OPT-OUT: Notwithstanding Subsections 18(A) and (B),
above, we each retain the right to:
i. seek to resolve a Claim in small claims court if it qualifies; and
ii. seek injunctive or other equitable relief from a court of competent
jurisdiction to prevent (or enjoin) the infringement or misappropriation of our
respective intellectual property rights.
In addition, you will retain the right to opt out of arbitration entirely and litigate
any Claim if you provide us with written notice of your desire to do so by
regular mail sent to the attention of CLOUDNINE’s Legal Department at the
CLOUDNINE address set out in Section 21(C), below, within 30 days following
the date you first agree to these Terms. If CLOUDNINE changes any of the
terms of this Section 18 after the date you first accepted these Terms (or
accepted any subsequent changes to these Terms), you may reject any such
change by sending us written notice within 30 days of the date such change
became effective, as indicated in the “Effective” date above. By rejecting any
change, you are agreeing that you will arbitrate any Claim between you and
CLOUDNINE in accordance with the terms of this Section 18 as of the date
you first accepted these Terms (or accepted any subsequent changes to
(E) DISPUTE RESOLUTION AND NOTIFICATION OF CLAIMS: Prior to bringing a
Claim you and CLOUDNINE each agree to notice the other party and attempt,
in good faith, to negotiate an informal resolution. To begin this process,
before initiating any arbitration proceeding, the party seeking to bring a Claim
must send a Notice of Claim (“Notice”) by certified mail to the other party. All
Notices to CLOUDNINE must be sent to the CLOUDNINE address set out in
Section 21(C), below. The Notice must describe the nature and basis of the
Claim and the relief sought. If we are unable to resolve the potential Claim
within 45 days after receipt of the Notice, then you or CLOUDNINE may initiate
arbitration proceedings as set out below.
(F) ARBITRATION PROCESS AND RULES: Any arbitration will be conducted by
JAMS pursuant to its procedural rules for commercial disputes (“JAMS
Rules”), using the Optional Expedited Arbitration Procedures when applicable.
The JAMS Rules are available at https://www.jamsadr.com. A party who
wishes to start arbitration must submit a written Demand for Arbitration to
JAMS and give notice to the other party as specified in the JAMS Rules. JAMS
provides a form Demand for Arbitration at www.jamsadr.com. JAMS will
appoint an arbitrator. When practical, the arbitrator should have prior subject
matter knowledge and familiarity with sweepstakes and/or fundraising laws in
the jurisdiction in which the CLOUDNINE entity that you have contracted with
is incorporated. The arbitration may be conducted via video-conference or in-
person in the county (or other municipality) where you live, unless we both
agree to a different location. The parties agree that the arbitrator shall have
exclusive authority to decide all issues relating to the interpretation,
applicability, enforceability, and scope of this arbitration agreement. During
the arbitration, both you and CLOUDNINE may take one deposition of the
opposing party, limited to 4 hours. If we cannot agree on a time and location
for a deposition, the arbitrator will resolve any scheduling disputes. The
arbitrator shall provide a decision explaining his or her findings and
conclusions, and the ruling may be entered in any court having jurisdiction
thereof. The arbitrator’s decision shall be final and binding upon the parties to
(G) ARBITRATION COSTS: Payment of all filing, administration and arbitrator
fees will be governed by the JAMS Rules. If you assert a claim against
CLOUDNINE, you will be responsible for paying the consumer filing fee.
CLOUDNINE will pay for all other JAMS-included fees (including filing,
administration, and arbitrator fees and expenses). Each party shall pay its own
attorneys’ fees and any other costs it incurs. If any party prevails on a
statutory claim that affords a prevailing party attorneys’ fees and costs, or if
there is a written agreement providing for attorneys’ fees and costs, the
arbitrator will award such costs and fees per the applicable statute or written
agreement. The arbitrator shall resolve any dispute regarding the
reasonableness of any fee or cost that may be awarded under this paragraph.
(H) CONFIDENTIALITY: To the extent permitted by law, the existence of the
arbitration, the arbitration proceedings, and the outcome of the arbitration will
be treated as confidential and will not be disclosed by either party. You and
CLOUDNINE agree that an award, and any judgment confirming it, only applies
to the arbitration in which it was awarded and cannot be used in any other
proceeding except to enforce the award itself and any post-arbitration action
seeking to enforce an arbitration award or action seeking equitable or
injunctive relief shall be brought exclusively in the courts in Wilmington
County, Delaware, or the United States District Court for the District of
Delaware (or in the jurisdiction in which the CLOUDNINE entity that you have
contracted with is incorporated).
(I) SEVERABILITY: If any part of this arbitration provision is deemed to be
invalid, unenforceable, or illegal, or otherwise conflicts with the rules and
procedures established by JAMS, then the balance of this arbitration provision
shall remain in effect and shall be construed in accordance with its terms as if
the invalid, unenforceable, illegal or conflicting provision were not contained
19. CONTRACTING ENTITY, GOVERNING LAW; JURISDICTION: Users of the
www.epicwin360.com website are contracting with CLOUDNINE CODE, s.r.o.
If you contracted with CLOUDNINE CODE, s.r.o., all matters relating to the
Services and/or these Terms, and any dispute or Claim arising therefrom or
related thereto (in each case, including non-contractual disputes or Claims),
shall be governed by and construed in accordance with United States federal
law and the law of the State of Delaware, without giving effect to the conflict
of laws rules thereof.
Subject to the arbitration provision and class action waiver in Section 18,
above, if you contract with CLOUDNINE CODE, s.r.o., exclusive jurisdiction for
all Claims that are not required to be arbitrated will be in the courts located in
the Czech Republic and you consent to the jurisdiction of those courts.
20. LIMITATION OF TIME TO FILE CLAIMS: ANY CAUSE OF ACTION OR
CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS
OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER
THE CAUSE OF ACTION OR CLAIM ACCRUES; OTHERWISE, SUCH CAUSE OF
ACTION OR CLAIM IS PERMANENTLY BARRED.
(A) RELATIONSHIP OF PARTIES: You agree that no joint venture, partnership,
employment, or agency relationship exists between you and CLOUDNINE
because of these Terms or your use of the Services.
(B) ASSIGNMENT: CLOUDNINE may assign these Terms, in whole or in part, to
any person or entity at any time with or without your consent. You may not
assign these Terms without CLOUDNINE’s prior written consent, and any
unauthorized assignment by you shall be null and void ab initio
(C) NOTICES: All notices given by you or required under these Terms shall be
in writing and addressed to CLOUDNINE CODE, s.r.o., Zámostní 1155/27,
Slezská Ostrava, 710 00 Ostrava Czech Republic.
(D) EQUITABLE REMEDIES: You hereby agree that CLOUDNINE would be
irreparably damaged if the terms of these Terms 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 these Terms, in addition to such other remedies as we
may otherwise have available to us under applicable laws.
(E) FORCE MAJEURE: Neither you or CLOUDNINE will be liable for any failure
or delay in performance under these for causes beyond the other party’s
reasonable control and not caused by that party’s fault, or negligence,
including, but not limited to, “acts of God”, acts of government, flood, fire, civil
unrest, acts of terror, strikes or other labor problems, computer attacks or
malicious acts, such as attacks on or through the internet, any internet service
provider, telecommunications or hosting facility, but in each case, only if and
to the extent that the non-performing party is without fault in causing such
failure or delay, and the failure or delay could not have been prevented by
reasonable precautions and measures and cannot reasonably be
circumvented by the non-performing party through the use of commercially
reasonable, alternate sources.
(F) WAIVER AND SEVERABILITY: Our failure to enforce any provision of these
Terms 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 such
provision thereafter. The express waiver by us of any provision, condition or
requirement of these Terms shall not constitute a waiver of any future
obligation to comply with such provision, condition or requirement. If any of
the provisions of these Terms is found to be invalid or unenforceable, then
that provision will be construed in a manner consistent with applicable laws to
reflect, as nearly as possible, the original intentions of the parties, and the
remaining provisions shall remain in full force and effect.
(G) ENTIRE AGREEMENT: These Terms, including Official Rules and
Experience Rules, as well as any other the documents, rules or policies
expressly incorporated by reference, constitutes the entire agreement
between you and us with respect to the Services supersede all prior and
contemporaneous understandings, agreements, representations, and
warranties, both written and oral, regarding the Services.
(H) YOUR COMMENTS AND CONCERNS: The Website is operated by
CLOUDNINE CODE, s.r.o. All notices of copyright infringement claims should
be sent to the copyright agent designated in the Copyright Infringement
provision, Section 12(A), in the manner and by the means set out therein. All
other feedback, comments, requests for technical support, and other
communications relating to the Services should be directed
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