DCloud Terms of Service

Last Updated: 10/14/2021

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICES, PLATFORM, OR WEBSITE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING DCloud’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Service. YOUR USE OF THE SERVICE, AND DCloud’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY DCloud AND BY YOU TO BE BOUND BY THESE TERMS.

Arbitration NOTICE. Except for certain kinds of disputes described in Section 19, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND DCloud ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims tribunal). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 19.) 

  1. ACCEPTANCE OF DCloud PLATFORM TERMS AND CONDITIONS

These Terms govern your access to the information contained on the DCloud website (the “Website”), use of the DCloud application program interface(s) (API(s)), Integrated Development Environment,sample software code, and other related websites, networks, applications, SDKs, and other materials provided or made available by DCloud (the “Platform”) that enable you to implement the DCloud live video platform services offered by DCloud (collectively, the “Service”) on one or more website(s), web application(s), or mobile application(s) owned and controlled by you (“Your Product”).

“DCloud”, “we”, “us”, “our”, and similar means DCloud.io. and its affiliates.

“You” or “your” means you, the person who has accessed the Website or has downloaded and is using or uses the Platform and Service and is the licensee under these Terms. If you are signing up for the Platform and the Service on behalf of a company (an “Enterprise Customer”), you represent that you are duly authorized to represent such company and accept the Terms on behalf of such company. To the extent that your use of the Platform or Services is subject to an Enterprise Customer agreement, such Enterprise Customer agreement, including any addendum thereto, will prevail over any conflicting provision in these Terms.

In order to use the Website, Platform, and Services, you are required to accept and to agree to be bound by these Terms. If you are an Enterprise Customer, you agree to incorporate these Terms into Your Products and ensure that your customers adhere to these Terms (which may also include Additional Terms as described in Section 20.4).

  1. ELIGIBILITY AND AUTHORITY

You must be at least 16 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 16 years old; (b) you have not previously been suspended or removed from the Platform or Service; and (c) your registration and your use of the Platform or Service is in compliance with any and all applicable laws and regulations.

  1. Accounts and Registration

To access some features of the Platform or Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password.

You are solely responsible for maintaining the confidentiality of your account and password, including any application programming interface (“API”) key provided to you by DCloud, and you accept responsibility for all activities that occur under your account and API key. If you believe that your account is no longer secure or that someone has used your API key without your permission, then you must immediately notify us at service@dcloud.io .

  1. Licenses

4.1. Subject to your compliance with these Terms and DCloud’s Acceptable Use policy located in our privacy policy page, DCloud grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (a) access and uses the Website and Service and (b) use the Platform in order to display, interface and implement the Service on Your Product, solely in accordance with the terms and conditions of these Terms. You may not install or use the Platform for any other purpose without DCloud’s prior written consent.

4.2. You will not sell, transfer, assign, rent, lease, or sublicense DCloud’s code, the Platform, or the Service to anyone. Except as expressly authorized by DCloud, and except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Platform or Service; (b) make modifications to the Website, Platform or Service; or (c) interfere with or circumvent any feature of the Website, Platform or Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Website, Platform or Service, you may not use it. In addition, you may not nor allow any third party to copy, reverse engineer, decompile or disassemble DCloud’s code, the Platform, or the Service, or build alternative methods to access the Service other than as provided through the Platform (except to the limited extent such restrictions are expressly prohibited by applicable law). Nor may you obscure or cover any graphical element of the Service or otherwise interfere with the operation of the Website, Platform, or Service.

4.3. To the extent any features available through the Service are provided by other third parties, DCloud will make commercially reasonable efforts to communicate any policies, requirements, or guidelines of those third parties to you. You agree to follow those policies, requirements, or guidelines. By using any of these features, you agree that DCloud may transfer your information to the applicable third party service solely to the extent necessary to perform the Service. DCloud does not control and, to the fullest extent permitted by law, is not responsible for any third party services and content.

4.4. You hereby grant DCloud a limited, non-exclusive, non-transferable, non-sublicensable license to display your trade names, trademarks, service marks, logos, domain names and the like for the purpose of promoting or advertising that your use of the Platform and the Service.

4.5. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Website, Platform or Service (“Feedback”), then you hereby grant DCloud an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Website, Platform or Service and create other products and services.

  1. INTEGRATION OF THE SERVICE ON YOUR PRODUCT

5.1.  The Service includes branding for DCloud. You agree not to remove, obscure, or alter any branding contained in the Service or any notice of any DCloud Marks. You may not display DCloud Marks on Your Product (or otherwise) other than (a) through the display of the Service in accordance with the Platform and DCloud’s branding guidelines and (b) solely for the purpose of disclosing that Your Product has implemented the Service in a manner that does not suggest any further relationship or endorsement of Your Product by DCloud.

5.2.  Other than through the API configuration options provided by DCloud, you may not, nor allow any third party to alter, change or modify any user interface, feature or functionality of the Service without the express written consent of DCloud.

5.3.  Notwithstanding the foregoing paragraphs of this Section 5, DCloud licenses certain components of the Platform (e.g. the DCloud HTML Embed) under a permissive software license. In these cases, you agree not to use any DCloud Marks, including those originally built into the code we provide, in any modified version of that code unless (a) it follows the branding guidelines or (b) you have entered into a separate written trademark license agreement with DCloud.

5.4.  You agree to update code provided by DCloud in connection with modifications to the Service or Platform in a reasonable and timely fashion after DCloud makes them available.

5.5.  DCloud may update files on our servers that will automatically change the functionality of the Platform or Service, and you consent to those updates.

5.6.  DCloud reserves the right to place volume limitations on access to the Platform or Service. DCloud reserves the right to cap concurrent video chat sessions conducted via Your Product in its discretion.

6.     User Content

6.1 Certain features of the Service may permit you or your users to upload content to or via the Service, including messages, photos, video, audio, images, folders, data, text, and other types of works (“User Content”) and to display, transmit, record, and store User Content on or via the Service. You will retain any copyright and other proprietary rights that you may hold in the User Content that you upload to the Service. You warrant and represent to DCloud and its affiliates that you have fully and explicitly disclosed, with simple and easy-to-read words, how and why you and the Service collect User Content and what kind of User Content will be collected when your users interact with the Service, and that you and/or your users have obtained all the necessary and explicit consent and authorization from your users and/or any third party (as applicable and necessary), before using the Service (including the recording and/or storage features), for DCloud to provide the Service for you or your users.

6.2 By providing User Content to or via the Service, you grant DCloud a worldwide, non-exclusive, irrevocable, royalty-free, fully paid, transferable right and license (with the right to sublicense) to copy, reproduce, use, host, store, transfer, publicly display, publicly perform, transmit, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.

6.3 DCloud disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:

(a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize DCloud to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by DCloud the Service, and these Terms;

(b) your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any legitimate right of your users or any third party, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, any other intellectual property/proprietary right, right to give and withdraw consent, or any other data protection right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause DCloud to violate any law or regulation; and

(c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.

6.4 We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. DCloud may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against DCloud with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, DCloud does not permit copyright-infringing activities on the Service.

6.5 We do not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that DCloud reserves the right to, and may at any time monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time DCloud chooses to monitor the content, DCloud still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.

  1. FREE TRIALS

7.1.  In its sole discretion, DCloud will determine whether you are eligible for a free trial subscription to the Service. You must agree to these Terms in order to be eligible for a free trial.

7.2.  During the free trial, you may use the Service for internal demonstration purposes only. DCloud expressly prohibits you from deploying the Service on any public or privately-facing website or mobile application for any commercial purpose (a “Live Deployment”) during the free trial including without limitation (a) for the purpose of generating advertising revenue directly or indirectly from the Service, (b) as an inducement for downloading toolbars, plugins, or downloads of any type, (c) as part of a paid service of any kind, (d) to provide any form of paid or unpaid support to your customers or users, or (e) as part of any brand, product, or service promotion or communication activity of any kind.

7.3.  We reserve the right to limit the number of free trials per account, take actions to prevent abuse, and change the conditions of the free trial or discontinue it entirely at any time without notice. DCloud reserves the right at any time to terminate your free trial and suspend your API key should it determine in its sole discretion that your free trial is a Live Deployment.

7.4.  DCloud is not obligated in any way to provide customer support or technical assistance to you during your free trial.

  1. Ownership; Proprietary Rights

The Website, Platform, and Service is owned and operated by DCloud. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements (“Materials”) provided by DCloud are protected by intellectual property and other laws. All Materials are the property of DCloud or its third party licensors.

You acknowledge that the Website, Platform and the Service are protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the Singapore and other countries and that all ownership and intellectual property rights in the Website, Platform and the Service, including without limitation the trademarks DCloud and all related trade names, service marks, logos, domain names and the like (“DCloud Marks”) do and shall, as between you and DCloud, belong exclusively to DCloud. Except as expressly provided herein, these Terms grant you no right, title, license, or interest in any intellectual property owned or licensed by DCloud, including (but not limited to) the Website, Platform, the Service, Materials, or the DCloud Marks.

  1. FEES

9.1.  Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged.

9.2.  DCloud reserves the right to determine pricing for the Service. DCloud will make reasonable efforts to keep pricing information published on the Website up to date. We may increase or add new fees for any existing Service or Service feature by giving you advance notice of changes before they apply. DCloud, at its sole discretion, may make promotional offers with different features and different pricing to any of DCloud’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.

9.3.  To the extent the Service or any portion thereof are made available for any fee, you agree to pay all applicable fees (including any minimum subscription fees) as set forth in the pricing section of our Website. You authorize DCloud to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by DCloud, including all applicable taxes, to the payment method specified in your account. We may specify the manner in which you will pay any fees, and any such payment shall be subject to our general accounts receivable policies from time to time in effect. If you pay any fees with a credit card, DCloud may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.

9.4.  All amounts payable by you under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, you shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required.

9.5.  Should you have any dispute as to fees associated with your account, please contact us at service@dcloud.io within 10 days of the date of the activity that generated such dispute, and we will attempt to resolve the matter. Any and all refunds issued to resolve such a dispute shall be issued as credits to your account, but in no event shall there be any cash refunds. Disputes older than 30 days shall not be entitled to any refunds or credits.

  1.  ACCEPTABLE USE POLICY; Compliance obligations

Your use of the Website, Platform, and Service is subject to DCloud’s Acceptable Use Policy located in our (“Acceptable Use Policy”) page, including all compliance obligations listed therein. You are solely responsible for all content, services and advertising available through Your Product, and Your Product’s compliance with the Acceptable Use Policy.

DCloud reserves the right to investigate and take appropriate legal action against anyone who, in DCloud’s sole discretion, violates these Terms, including without limitation, removing the offending content from the Service, suspending or terminating the access of such violators and reporting you to the law enforcement authorities. If you are unsure whether Your Product or use of the Website, Platform, or Services complies with the Acceptable Use Policy, please email us at service@dcloud.io so we can discuss whether your proposed use is acceptable.

  1.  Privacy; Data transfers

11.1.  Privacy. The DCloud Data Processing Addendum is incorporated by this reference into, and made a part of, these Terms.

11.2.   Data Transfers for Users Located in the European Economic Area. If you or your users are located in the European Economic Area, you agree that all international data transfers will be made pursuant to the Standard Contractual Clauses, as updated, amended, replaced or superseded from time to time by the European Commission, the approved version of which in force at present is that set out in the European Commission’s Decision 2004/915/EC of 27 December 2004.

By agreeing to these Terms, you and DCloud conclude the Standard Contractual Clauses as included in the Data Processing Addendum.

  1.  SECURITY

12.1.  You must be reachable during reasonable business hours for security questions or concerns through the contact information that you provided upon requesting your credentials to the Platform or API key. You will ensure that all networks, computer and operating systems, software and other systems used to operate Your Product employ security measures to prevent unauthorized access to or use of any user data and the Service. You must promptly report any security deficiencies in or intrusions to your systems to DCloud at service@dcloud.io.

12.2.  You understand that the operation of the Service, including your (or your users’) content, may be unencrypted and involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices and (iii) transmission to DCloud’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of your content. DCloud will have no liability for any unauthorized access or use of any content, or any corruption, deletion, destruction or loss of any content. Except otherwise agreed to in a Enterprise Customer agreement, you further acknowledge and agree that DCloud may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce these Terms; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of DCloud, its users and the public.

12.3.  In addition to our rights to terminate or suspend the Service as described in Section 14 below, you acknowledge that: (i) your access to and use of the Service may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Service at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by applicable law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”).

  1.  REPRESENTATIONS AND WARRANTIES

You represent and warrant that: (a) you have the right to use, reproduce, transmit, copy, publicly display, publicly perform, and distribute any content or data on Your Product or that is used or incorporated with the Service, and that neither Your Product nor any related content violate the rights of any third party (e.g. copyright, patent, trademark, or other proprietary right of any person or entity), or any applicable regulation or law, including but not limited to any export, re-export, or import laws and the laws of any country in which Your Product, content or service is made available; (b) you have all necessary rights and authorizations to agree to these Terms and to use the Platform and the Service as contemplated by these Terms; and (c) your agreement and compliance with these Terms and use of the Platform and the Service will not violate any law, regulation or contractual obligation.

  1.  TERM and termination

14.1.  These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Website or Service, and ending when terminated as described in this Section. You may terminate the Service at any time, for any or no reason, by deleting your account, unsubscribing from the Service, and disabling Your Product’s access of the Platform and use of the Service. Refunds for Services will not be provided unless you have prepaid for Services, in which case you may be eligible for a refund for unused, prepaid amounts. If you purchased an irrevocable, non-refundable package, no refunds will be provided.

14.2.  We reserve the right to suspend or terminate your right and license to access or use any or all of the Website, Platform and Service or terminate these Terms in their entirety (and, accordingly, your right to use the Service) at any time, for any or no reason, by providing you 10 days’ advance notice. If DCloud determines that providing advance notice would negatively impact DCloud’s ability to provide the Service, DCloud may suspend your right and license to access or use any or all if the Platform and Service or terminate these Terms in their entirety (and, accordingly, cease providing all Services to you), with no notice.

14.3.  In addition, we may suspend your right and license to access and use the Platform and the Service or terminate these Terms in their entirety (and, accordingly, your right to use the Service), for cause effective as set forth below:

(a) Immediately upon notice if: (i) DCloud determines that Your Product is harmful to or inconsistent with DCloud’s reputation and goodwill; (ii) if you violate, or we have reason to believe that you have violated, any provision of the Acceptable Use Policy; (iii) there is an unusual spike or increase in your use of the Service for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Service; (iv) we determine, in our sole discretion, that our provision of any of the Service to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (v) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding;

(b) Immediately and without notice if you are in default of any payment obligation with respect to any of the Service or if any payment mechanism you have provided to us is invalid or charges are refused for such payment mechanism; or

(c) Three (3) days following our notice to you of a breach of any other provision of these Terms and failure, as determined by us, in our sole discretion, to cure such breach within such 5-day period.

14.4.  Upon our suspension of your use of any Service, in whole or in part, for any reason: (i) fees will continue to accrue for any Service that is still in use by you, notwithstanding the suspension; (ii) you remain liable for all fees, charges and any other obligations you have incurred through the date of suspension with respect to the Service; and (iii) all of your rights with respect to the Service shall be terminated during the period of the suspension.

14.5.  Upon any termination of these Terms or your access to the Service, for any reason: (i) you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services; (ii) all rights and licenses granted by DCloud to you herein shall terminate, (iii) you shall immediately remove the Service from Your Product and remove all copies of the Platform from all computers, hard drives, networks, and other storage media, (iv) all of your content on the Service (if any) may be permanently deleted by DCloud.

  1.  Modifications

We reserve the right to change, modify, or update the Website and Platform at any time, to impose additional restrictions or limitations on the Service (including, without limitation, the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on DCloud’s servers on your behalf), or to change, modify or update the fees charged for all or a portion of the Service. You agree that DCloud has no responsibility or liability for the deletion or failure to store any data or other content maintained or transmitted by the Service. DCloud may decide what features to include in the Service and whether to make them optional or mandatory. You further acknowledge that DCloud reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

We also reserve the right to change, modify or update the Terms at any time. If we revise the Terms, we will post the revised Terms on our Website, and you consent to receiving notice of any changes through such posting. If required by law, DCloud will also provide you notice of changes as provided in Section 20.2. If you do not agree to the revisions, you must cease to use the Platform and remove components of the Service from Your Product. Your continued use of the Platform or use components of the Service on Your Product after the posting of the revised Terms means that you have accepted the new Terms; provided that material modifications are effective upon your acceptance of the revised Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

  1.  NO DCloud WARRANTIES

DCloud DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, PLATFORM OR THE SERVICE COMPLIES WITH ANY LEGAL REQUIREMENTS, IS FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS (INCLUDING WITHOUT LIMITATION SERVICE SUSPENSIONS), OR IS RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. THE WEBSITE, PLATFORM AND THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND DCloud EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LEGALITY, AVAILABILITY, SECURITY, TITLE AND/OR NON-INFRINGEMENT. YOUR USE OF THE WEBSITE, PLATFORM AND THE SERVICE ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THEIR USE, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OR CORRUPTION OF DATA.

  1.  LIMITATION OF LIABILITY

DCLOUD WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), STATUTE OR ANY OTHER LEGAL THEORY .

  1.  INDEMNITY AND WAIVER

You agree to indemnify, defend, and hold DCloud and its affiliates, officers, directors, agents, service providers, partners, and employees harmless from any claim, demand or allegation made by any third party, and all related losses, damages, liabilities, costs and expenses (including attorneys’ fees), that it is any way related to:

  •       your use of the Website, Platform or the Service;
  •       use of the Service by the users of Your Product;
  •       Your Product, including any content, services or advertisements on Your Product or that you incorporate with the Service;
  •       any claims for copyright infringement, defamation, invasion of privacy or right of publicity arising out of or in connection with any unauthorized use of the Service and your content on the Service; and
  •       your breach of any representation, warranty or covenant included in these Terms.

The foregoing indemnity provision shall be in addition to and not in lieu of any other indemnification obligations set forth in these Terms.

  1.  Dispute Resolution and Arbitration

You can submit a complaint to DCloud by sending an email to service@dcloud.io. If the dispute is serious and you wish to apply for arbitration, the dispute shall be adjudicated in accordance with the laws of Singapore.

19.1.   Generally. In the interest of resolving disputes between you and DCloud in the most expedient and cost-effective manner, and except as described in Section 19.2, you and DCloud agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court.

Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND DCloud ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

19.2  Exceptions. Despite the provisions of Section 19.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims tribunal; (b) pursue an enforcement action through the applicable agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

19.3  If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 19 within 30 days after the date that you agree to these Terms by sending a mail to service@DCloud that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once DCloud receives your Opt-Out Notice, this Section 19 will be void and any action arising out of these Terms will be resolved as set forth in Section 19.3. The remaining provisions of these Terms will not be affected by your Opt-Out Notice. 

19.4  Arbitrator. Any arbitration between you and DCloud will be settled under the Arbitration Act and administered by the Singapore International Arbitration Centre (“SIAC”) under Arbitration Rules of the Singapore International Arbitration Centre (collectively, “SIAC Rules”) as modified by these Terms. The SIAC Rules and filing forms are available online at https://siac.org.sg/, by calling the SIAC at +65 6713 9777, or by contacting DCloud. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

19.5  Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified mail (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). DCloud’s mail address for Notice is: service@dcloud.io. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or DCloud may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or DCloud must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by DCloud in settlement of the dispute prior to the award, DCloud will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $1,000.

19.6  No Class Actions. YOU AND DCloud 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. Further, unless both you and DCloud agree otherwise, 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.

19.7  Modifications to this Arbitration Provision. If DCloud makes any future change to this arbitration provision, other than a change to DCloud’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to DCloud’s address for Notice of Arbitration, in which case your account with DCloud will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

  1.  Miscellaneous

20.1.  General. These Terms govern your use of the Website, Platform and the Service and constitute the entire agreement between you and DCloud regarding the subject matter hereof. These Terms supersede any prior agreements between you and DCloud relating to your use of the Website, Platform and the Service (including, but not limited to, any prior versions of these Terms). The failure of DCloud to exercise or enforce any right or provision of these Terms does not constitute a waiver of that right or provision, and a waiver of any default is not a waiver of any other default. If a court of competent jurisdiction finds any provision of these Terms to be invalid, the provision shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the parties’ original intentions as reflected in the provision, and so that the other provisions of the Terms remain in full force and effect. All headings in the Terms are for convenience only and have no legal or contractual effect. The Terms are personal to you and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving you) without DCloud’s prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. DCloud expressly reserves and shall have the right to assign the Terms and to delegate any of its obligations hereunder.

20.2.  Notices. We may send you any notices, including those regarding changes to these Terms, to the email address you provided when you requested your API key or through any other reasonable means. Any notices to DCloud must be sent to service@dcloud.io

20.3.  Governing Law. These Terms shall be governed by the internal laws of Singapore, without giving effect to principles of conflict of laws.

20.4.  Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

20.5.  Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

20.7.  No Support. These Terms do not entitle you to any support for the Website, Platform or the Service, unless you make separate arrangements with DCloud and pay all fees associated with such support (if any). Any such support provided by DCloud shall be subject to the Terms as modified by the associated support agreement.