Cloudforest Services Agreement
Last updated on: January 15, 2023
We welcome you to Cloudforest! By signing up for a Cloudforest Account (as defined in Section 2) or by using any Cloudforest Services (as defined below), you are agreeing to be bound by the following terms and conditions (the “Terms of Service” or the “Agreement”).
This Agreement is by and between you (“User” or “you”/“your”) and Untrodden Inc dba Cloudforest, a Delaware corporation with offices at 2150 Hyde St., San Francisco CA 94109, USA (“Cloudforest” or “we”/“our”/“us”).
Any such service or services offered by Cloudforest are referred to in these Terms of Services as the “Service(s)”. Any new features or tools which are added to the current Services will also be subject to the Terms of Service. You can review the current version of the Terms of Service at any time at https://legal.cloudforest.io /terms.
By using all or any part of the Services described in this Agreement and/or by creating an account with Cloudforest (a “User Account”), you represent that you accept and will comply with all of the terms of this Agreement, including all documents, policies and supplemental terms referred to within it, which are incorporated into this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the terms of this Agreement, in which case “User” and “you” shall refer to such entity. Together, Cloudforest and the User will be referred to in this Agreement as the “Parties”.
You are responsible for regularly reviewing these Terms, and any new features or tools which are added to the current Services will also be subject to the Terms of Service. You can review the current version of the Terms of Service at any time at https://legal.cloudforest.io/terms. By using the Services, you agree that the posting of new or revised Terms or Policies on the Site will constitute adequate and constructive notice to you of any and all revisions and changes. Continued use of the Services after any such changes or after explicitly accepting the new terms upon logging into the Site shall constitute your consent to such changes and you agree to be bound by them as of the date of the modification.
Please read the Terms of Service, including any document referred to in these Terms of Service, for the complete picture of your legal requirements. By using Cloudforest or any Cloudforest services, you are agreeing to these terms.
- The Services
1.1 Cloudforest provides various services to suppliers, operators, resellers and affiliates of travel services (“Merchant(s)” or “Experience Provider(s)”), including but not limited to tours, trips, activities, attractions, retreats and accommodations, classes, workshops, festivals, rentals, transport services and/or any type of event (collectively referred to as “Product(s)” or “Experience Product(s)”).
Among other features, this platform includes a range of tools for merchants to build and customize online stores, sell in multiple places (including web, mobile, social media, online marketplaces and other online locations (“Online Services”), manage products, inventory, payments, fulfillment, shipping, business operations, marketing and advertising, and engage with existing and potential customers.
Any such platform, service or services offered by Cloudforest are referred to in these Terms of Services as the “Service(s)”.
1.2 The services provided by Cloudforest may include (but are not limited to) the following:
1.2.1 access to a day-to-day management and sales system, including but not limited to booking engines, that will enable you to market and sell products, services and experiences online on your own branded ecommerce site (the “Site” or “Online Store” or “Cloudforest Website”) that is provided using our platform (collectively the “Software”);
1.2.2 access to other users of Cloudforest’s services, and the opportunity to enter into contractual agreements with such users to resell Experience Products or bundle your Experience Products with those of other users;
1.2.3 access to travel agencies, partner merchants, and other distribution channels, through which you may sell your Experience Products (subject to the terms of service of those businesses and channels);
1.2.4 the opportunity to participate in Cloudforest’s affiliate marketing community (the “Cloudforest Community”), through which you can permit other users of the Cloudforest services to promote your Experience Products and/or place other users’ Experience Products on your site in return for a commission;
1.2.5 a website builder and related services (the “Cloudforest Web Storefront”); and
1.2.6 other business services, including those accessible through Cloudforest's app store (the "Cloudforest App Store").
1.3 All of the services described in Section 1.2 and any other services that may be provided by Cloudforest from time to time shall be referred to as the “Services”. Additional terms may apply to the provision of certain Services (“Supplemental Terms”), and such Supplemental Terms shall be incorporated within the terms of this Agreement.
1.4 You acknowledge and agree that you have the following additional responsibilities if you subscribe to the Cloudforest Web Storefront:
1.4.2 Restriction. You agree not to sell or advertise any products or services which in our opinion are fraudulent, counterfeit, stolen, abusive, infringes our or a third party’s intellectual property, is adverse to our reputation, prohibited or fails to comply with any applicable laws. If we find that you are advertising or selling such products or services we shall without having to give notice to you and at our discretion suspend Services to you and disable your Site.
1.4.3 You shall indemnify us against all damages, losses and expenses arising out of or in connection with any action or claim (i) in respect of any product or service sold on the Site or content displayed on the Site; (ii) in respect of any failure to comply with any applicable laws, regulations or industry guidance; (iii) in respect of any failure to comply with any other part of these Terms; (iv) by any payment service processor or provider (or similar third party managing payments on the Site) as a result of any act or omission of you or your customer or affiliates (including connection with a payment or transaction relating to your Site or Services.)
1.4.4 It is solely your responsibility to provide any User Content, information, equipment or software that may be necessary for you to use the Cloudforest Web Storefront.
1.4.5 You have sole responsibility for backing up all User Content. Cloudforest shall in no circumstances be responsible for the loss of any User Content.
1.4.6 You will use your best efforts to ensure that the User Content and Cloudforest Website are and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
1.5 All Services are provided “as-is” and Cloudforest assumes no responsibility for the timeliness, deletion, misdelivery or failure to store any User communications, personalization settings or content, information or other data. You are responsible for obtaining access to the Services, and that access may involve third party fees (such as Internet service provider or airtime charges). You alone are responsible for all such fees. In addition, you must provide, and are responsible for, all equipment necessary to access the Services. You agree to use the Services in a manner consistent with all applicable laws and regulations and in accordance with the terms of this Agreement.
1.6 Cloudforest reserves the right at any time to amend, suspend or discontinue any one or more of the Services, with or without notice. You agree that Cloudforest shall not be liable to you or any third party for any such amendments, suspension or discontinuance of any Service.
1.7 Cloudforest may at any time and from time to time establish general practices and limits concerning use of the Services, including without limitation the maximum disk space, bandwidth, volume of Cloudforest API calls and server processing that will be allotted on Cloudforest’s servers on your behalf, and the maximum number of times (and the maximum duration for which) you and your customers and/or agents may access the Services in a given period. You will comply with such practices and limits. You may not reverse engineer, decompile or disassemble any Software. Cloudforest takes no responsibility or liability for the deletion or failure to retain any messages and other communication or content, information or other data maintained or transmitted by the Services. These general practices may be amended and modified by Cloudforest from time to time with or without notice to you.
1.9 You agree not to access the Services or monitor any material or information from the Services using any robot, spider, scraper, or other automated means.
1.10 You understand that your Materials may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. “Materials” means Your Trademarks, copyright content, any products or services you sell through the Services (including description and price), and any photos, images, videos, graphics, written content, audio files, code, information, or other data provided or made available by you or your affiliates to Cloudforest or its affiliates.
- User Account and Account Activation
2.1 To access and use the Services, you must register for a Cloudforest account (“User Account”). To complete your User Account registration, you must provide us with your full legal name, business address, phone number, a valid email address, and any other information indicated as required. Cloudforest may reject your application for a User Account, or cancel an existing Account, for any reason, at our sole discretion.
2.2 You must be the older of: (i) 18 years, or (ii) at least the age of majority in the jurisdiction where you reside and from which you use the Services to open a User Account.
2.3 You confirm that you will use the Services solely for the purposes of carrying on a business activity and not for any personal, household or family purpose. If you sign up for a User Account on behalf of your employer, your employer will be deemed to be the User for the purpose of this Agreement, and you represent and warrant that you have the authority to bind your employer to this Agreement. Each User is responsible for: (a) ensuring that its employees, agents and subcontractors comply with this Agreement and (b) any breach of this Agreement by User’s employees, agents or subcontractors.
2.4 You acknowledge that Cloudforest will use the email address you provide on opening a User Account or as updated by you from time to time as the primary method for communication with you (“Primary Email Address”). You must monitor the Primary Email Address you provide to Cloudforest and your Primary Email Address must be capable of both sending and receiving messages. Your email communications with Cloudforest can only be authenticated if they come from your Primary Email Address.
2.5 You shall ensure that all information you provide to Cloudforest in connection with your User Account and use of the Services is at all times accurate, complete and up-to-date.
2.6 You are solely responsible for maintaining the confidentiality of your password and other User Account information. You are fully responsible and liable for all activities on your User Account (including any staff accounts as described in Section 2.12).
2.7 You shall immediately notify Cloudforest of any unauthorized use of your User Account, password or any other breach of security.
2.8 You shall ensure that you exit and log off your User Account at the end of each usage session. Cloudforest will not be liable for any loss or damage arising from your failure to comply with this Section 2.
2.9 You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Services, or access to the Services without the express written permission by Cloudforest.
2.10 You agree not to work around, bypass, or circumvent any of the technical limitations of the Services, including to process orders outside Cloudforest’s Checkout, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services.
2.11 Store Owner
2.11.1 Subject to Section 2.11.2, the person signing up for the Service by opening an Account will be the contracting party (“Store Owner ”) for the purposes of our Terms of Service and will be the person who is authorized to use any corresponding User Account we may provide to the Store Owner in connection with the Service. You are responsible for ensuring that the name of the Store Owner (including the legal name of the company that owns the Store, if applicable) is clearly visible on the Store’s website.
2.11.2 If you are signing up for the Services on behalf of your employer, your employer will be the Store Owner. If you are signing up for the Services on behalf of your employer, then you must use your employer-issued email address and you represent and warrant that you have the authority to bind your employer to our Terms of Service.
2.11.3. Your Cloudforest Store can only be associated with one Store Owner. A Store Owner may have multiple Cloudforest Stores. You agree to use Cloudforest Checkout for your store. “Store” means the online store (whether hosted by Cloudforest or on a third party website), or any storefront built on top of any Cloudforest API) associated with the User Account.
2.12 Staff Accounts
2.12.1 Based on your Cloudforest pricing plan, you can create one or more staff accounts (“Staff Accounts”) allowing other people to access the Account. Each Staff Account must include a full legal name and a valid email account. With Staff Accounts, the Store Owner can set permissions and let other people work in their Account while determining the level of access by Staff Accounts to specific business information (for example, you can limit Staff Account access to sales information on the Reports page or prevent Staff Accounts from changing general store settings). If you are granted permission by Cloudforest to create sub-accounts within your User Account, such sub-accounts may be created solely for members of your organization, and not for any third parties.
2.12.2 The Store Owner is responsible for: (a) ensuring it’s employees, agents and subcontractors, including via Staff Accounts, comply with these Terms of Service; and (b) any breach of these Terms of Service by the Store Owner’s employees, agents or subcontractors. The Store Owner acknowledges and agrees that Store Owner will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any affiliates or subsidiaries of Store Owner.
2.12.3 The Store Owner and the users under Staff Accounts are each referred to as a “Cloudforest User”.
- Fees and Payments
3.1 General. You will pay the Fees applicable to (a) your subscription to the Services (“Subscription Fees”), (b) service fees calculated as a percentage of the value of any bookings that are made using the Services (“Service Fees”), and any fees relating to your purchase or use of any Third Party Services (“Additional Fees”). Together, the Subscription Fees, the Service Fees, and the Additional Fees are referred to as the “Fees”.
3.2 Payment Method. You must keep a valid payment method on file with Cloudforest to pay for all incurred and recurring Fees. Cloudforest will charge applicable Fees to any valid payment method that you authorize within your User Account (the “Authorized Payment Method”), and Cloudforest will continue to charge the Authorized Payment Method for applicable Fees until all outstanding Fees have been paid in full.
3.3 Subscription Fees. The Subscription Fees are charged in advance on a recurring basis (except where may otherwise have been agreed with you). Accordingly, where applicable, Cloudforest will attempt to automatically renew the Services on a monthly basis (each month being a “Billing Period”), and will automatically charge you the applicable Subscription Fees using the Authorized Payment Method. If you wish to stop using one or more Service, you need to notify Cloudforest within your User Account at least two (2) US business days prior to the start of the next Billing Period. We will then remove your access to such Service(s) from the end of your last Billing Period.
3.4 Free Trials. Cloudforest may sometimes offer the opportunity to utilize one or more Services for free (or partially free) for a limited period of time (“Free Trial”). If you are participating in a Free Trial, you shall have the right to use such Service(s) for the duration of the Free Trial without charge (or, as applicable, with the limited charges specified) until the expiration date of the Free Trial. Unless you notify Cloudforest by email that you do not wish to subscribe to such Service(s) at least one (1) US business days prior to such expiration date, Cloudforest may automatically charge you for your first payment the day following expiry of the Free Trial, and your subscription to the Service(s) shall then begin on the basis of the standard Fees.
3.5 Service Fees. Cloudforest may offer you a choice of how to pay the Service Fees. If you choose to be invoiced by Cloudforest for the Service Fees on a monthly basis, Section 3.5 (a) – (c) shall apply. If you choose to pay the Service Fees using “Cloudforest Payments”, Section 3.6 shall apply.
(a) Cloudforest shall send an invoice for the Service Fees to you at the beginning of each month, based on booking value and booking dates (not travel dates) in the preceding month.
(b) For the avoidance of doubt, if any booking is cancelled (in accordance with the applicable cancellation policy) after the corresponding invoice has been raised, the Service Fees in respect of such booking shall still be payable by you.
(c) Each invoice submitted by Cloudforest shall be paid in full by you by credit card. You are required to submit your credit card details before being invoiced by Cloudforest.
3.6 Cloudforest Payments. If you choose to pay the Service Fees using “Cloudforest Payments”, you will be required to create an account with a third party payment provider, subject to separate terms and conditions with such third party (the “Cloudforest Payments Provider”). You agree to be bound by the Cloudforest Payment Provider’s terms and conditions. Unless otherwise notified to you, the Service Fees will be paid to Cloudforest by the Cloudforest Payments Provider, based on booking value and booking dates (not travel dates) in the preceding month. In choosing to use Cloudforest Payments, you agree that no refunds will be due in respect of Service Fees for bookings that are subsequently cancelled and/or otherwise refunded at any time.
Payment processing services for Cloudforest Payments are among others provided by Stripe, Inc. ("Stripe") and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the "Stripe Services Agreement"). By agreeing to these terms or continuing to use our Services, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Cloudforest enabling payment processing services through Stripe, you agree to provide Cloudforest accurate and complete information about you and your business, and you authorize Cloudforest to share it and transaction information related to your use of the payment processing services provided by Stripe. In all cases, standard credit card or other third party processing fees apply in addition to any Cloudforest Service Fees. Cloudforest is not responsible for the performance of any third party credit card processing or third party payment services. You expressly understand and agree that the Cloudforest shall not be liable for any payments and monetary transactions that occur through your use of the Service.
3.7 Changes to Fees. Cloudforest reserves the right to increase the Fees from time to time with effect from the following month by providing you with no less than 30 days’ notice. For the avoidance of doubt, Cloudforest does not need to notify you if we decide to raise the price of a Service for which you are not subscribed.
3.8.1 All amounts payable under this Agreement:
(a) will be exclusive of any applicable sales, use, excise, value added tax, or other tax or amount which may be levied on the Services provided for under this Agreement. Where applicable, taxes payable will be reflected as separate items on invoices, which will include a detailed description of such tax; and
(b) shall be paid in full without any deductions except where the payor is required by law to deduct withholding tax from sums payable to the payee and remit to the local tax authorities. Payor shall promptly provide to payee any proof of such remittances to the local tax authorities, including receipts issued from the appropriate tax regulatory authority or any other relevant documentation evidencing payment of any amounts deducted pursuant to this clause.
3.8.2 There may be additional terms and conditions relating to taxes that are set out in the Supplemental Terms. It is your responsibility to ensure that you comply with all such additional terms.
3.9 You are solely responsible for determining, collecting, withholding, reporting, and remitting applicable taxes, duties, fees, surcharges and additional charges that arise from or as a result of any sale on your Cloudforest Store or your use of the Services. The Services are not a marketplace. Any contract of sale made through the Services is directly between you and the customer.
3.10 You must maintain an accurate location in the administrative console of your Cloudforest Store. If you change jurisdictions you must promptly update your location in the administrative console.
- Your Responsibilities
4.1 You acknowledge and agree to provide public-facing contact information, terms of service, and a cancellation or refund policy on your Cloudforest Store.
4.1.2 You acknowledge and agree that the Services are not a marketplace, and any contract of sale made through the Services is directly between you and the customer. You are the seller of record for all items you sell through the Services. You are responsible for the creation and operation of your Cloudforest Store, your Materials, the goods and services that you may sell through the Services, and all aspects of the transactions between you and your customer(s). This includes, but is not limited to, authorizing the charge to the customer in respect of the customer’s purchase, refunds, returns, fulfilling any sales or customer service, fraudulent transactions, required legal disclosures, regulatory compliance, alleged or actual violation of applicable laws (including but not limited to consumer protection laws in any jurisdiction where you offer products or services for sale), or your breach of these Terms of Service. You represent and warrant that your Store, your Materials and the goods and services you sell through the Services will be true, accurate, and complete, and will not violate any applicable laws, regulations or rights of third parties. For the avoidance of doubt, Cloudforest will not be the seller or merchant or record and will have no responsibility for your Store or items sold to customers through the Services.
4.1.3 You are solely responsible for the goods or services that you may sell through the Services (including description, price, fees, tax that you calculate, defects, required legal disclosures, regulatory compliance, offers or promotional content), including compliance with any applicable laws or regulations.
4.1.4 You may not use the Cloudforest Services for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws), the laws applicable to you in your customer’s jurisdiction, or the laws of the United States of America and the State of California. You will comply with all applicable laws, rules and regulations (including but not limited to obtaining and complying with the requirements of any license or permit that may be necessary to operate your store or that may be held by you) in your use of the Service and your performance of obligations under the Terms of Service.
4.1.5 As a merchant, you may create a Product Listing (“Product Listing”). To create a Listing, you will be asked a variety of questions about the Product to be listed, including, but not limited to, the location(s), dates, minimum and maximum amount of participants, duration, pricing and related rules and financial terms. You acknowledge and agree that you are responsible for any and all Product Listings you post. Accordingly, you represent and warrant that any Listing you post (i) will not breach any agreements you have entered into with any third parties, such as travel agencies or other employers and (ii) will (a) be in compliance with all applicable laws (such as travel guide laws and laws governing travel related activities in the departure and destination countries), tax requirements, and rules and regulations that may apply to any Trip and activity included in a Product you post. Cloudforest reserves the right, at any time and without prior notice, to remove or disable access to any Product Listing for any reason, including Product Listings that Cloudforest, in its sole discretion, considers to be objectionable for any reason. You understand and agree that Cloudforest does not act as an insurer or as your contracting agent. If a browser or visitor of one of your Product Listings requests a booking of your Product and becomes a participant in or attendee of one of the Products you offer (a “Participant”), any agreement you enter into with such Participant is between you and the Participant and Cloudforest is not a party thereto. Notwithstanding the foregoing, Cloudforest serves as the limited authorized payment collection agent of the merchant for the purpose of accepting, on behalf of the merchant, payments from Participants of such amounts stipulated by the merchant.
4.1.5 You agree to use Cloudforest Checkout for any sales associated with your online store. “Cloudforest Checkout” means Cloudforest’s checkout experience that allows Customers to enter their customer information and payment details after adding Product(s) to their cart and before placing an order or booking request.
- Intellectual Property Rights
4.1 Cloudforest’s intellectual property rights in or arising out of the Services shall at all times be the property of Cloudforest. Nothing in this Agreement shall be regarded as the assignment of any such intellectual property rights to you.
4.2 Any intellectual property rights in or arising out of the Services that may be owned by third parties shall at all times remain with such third parties.
- User Content and Your Materials
5.1 Cloudforest does not claim ownership of any content that is submitted to or otherwise made available by you for the use of any part of the Services (the “User Content” or “Materials”). The User Content includes, but is not limited to: information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials. You are fully responsible for all of your User Content, including for archiving and backing up your User Content frequently.
5.2 You grant Cloudforest a non-exclusive, transferable, sub-licensable, royalty-free, worldwide right and license to host, use, distribute, expose, modify, run, copy, store, publicly perform, communicate to the public (including by telecommunication), broadcast, reproduce, make available, display, and translate, and create derivative works of any Materials provided by you in connection with the Services. We may use our rights under this license to operate, provide, and promote the Services and to perform our obligations and exercise our rights under the Terms of Service. You represent, warrant, and agree that you have all necessary rights in the Materials to grant this license. You irrevocably waive any and all moral rights you may have in the Materials in favor of Cloudforest and agree that this waiver may be invoked by anyone who obtains rights in the materials through Cloudforest, including anyone to whom Cloudforest may transfer or grant (including by way of license or sublicense) any rights in the Materials.
5.3 If you owned the Materials before providing them to Cloudforest then, despite uploading them to your Cloudforest Store they remain yours, subject to any rights or licenses granted in the Terms of Service or elsewhere. You can remove your Cloudforest Store at any time by deleting your Account. Removing your Cloudforest Store does not terminate any rights or licenses granted to the Materials that Cloudforest requires to exercise any rights or perform any obligations that arose during the Term.
5.4 By using the Services, you agree that Cloudforest may use your name and logo in presentations, marketing material, client lists, financial reports and on websites listing Cloudforest’s customers. If, pursuant to the provision of the Cloudforest Web Storefront, Cloudforest makes an icon available to you incorporating the words “powered by Cloudforest” (or similar) (the “Icon”), Cloudforest grants to you a limited, royalty-free and non-exclusive license to use the Cloudforest name solely as incorporated within such Icon for the purposes of displaying the Icon on your Cloudforest Website.
5.4 You agree not to upload, transmit or otherwise make available in connection with the Services any User Content that is unlawful, subject to third party property rights, harmful, threating, abusive, harassing, torturous, defamatory, vulgar, obscene, libellous, invasive of another person’s privacy, hateful, racist or otherwise objectionable.
5.5 If Cloudforest becomes aware of any User Content violating Section 5.4 of this Agreement, Cloudforest reserves the right to remove any such User Content from the Services.
5.6 Under no circumstances will Cloudforest be liable for the User Content, including but not limited to, for any errors or omissions in User Content, or for any loss or damage of any kind incurred as a result of the use of any User Content posted, transmitted or otherwise made available via the Services. You bear all risks associated with the use of any of your User Content.
PLEASE NOTE THAT, AS STATED ABOVE, THE SERVICES ARE INTENDED TO BE USED TO FACILITATE BOOKING TRANSACTIONS BETWEEN EXPERIENCE PROVIDERS AND CUSTOMERS INTERESTED IN EXPERIENCE PRODUCTS OFFERED BY SUCH EXPERIENCE PROVIDERS THROUGH THEIR PRODUCT LISTINGS. CLOUDFOREST CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY EXPERIENCE PRODUCT OR PRODUCT LISTING BEING OFFERED AND THE CONDITION, CIRCUMSTANCES, LEGALITY OR SUITABILITY OF ANY EXPERIENCE PRODUCT. CLOUDFOREST IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY PRODUCT LISTING ON YOUR CLOUDFOREST STORE.
- Additional Services and Third Party Services
6.1 Cloudforest may from time to time recommend, provide you with access to, and/or enable your use of third party software, applications (“Apps”), products, services or website links (collectively, “Third Party Services”), including via the Cloudforest App Store. Such Third Party Services are made available only as a convenience, and your purchase, access or use of any such Third Party Services is solely between you and the provider of the applicable Third Party Services (each, a “Third Party Provider”). In addition to this Agreement, you also agree to be bound by the additional terms applicable to any Third Party Services you purchase from, or that are provided by, Third Party Providers.
6.2 Any use by you of Third Party Services offered through the Services or through the Cloudforest App Store is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and privacy policies applicable to such Third Party Services before using them. In some instances, Cloudforest may receive a revenue share from Third Party Providers whose Third Party Services you use. Cloudforest does not provide any warranties or make representations to you with respect to any Third Party Services. You acknowledge that Cloudforest has no control over Third Party Services and shall not be responsible or liable to you or anyone else for such Third Party Services.
6.3 The availability of Third Party Services through the Services, including the Cloudforest App Store, or the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Cloudforest. Cloudforest does not guarantee the availability of Third Party Services and you acknowledge that Cloudforest may disable access to any Third Party Services at any time in its sole discretion and without notice to you. Cloudforest is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service. Cloudforest strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs.
6.4 If you install or enable a Third Party Service for use with the Services, you grant Cloudforest permission to allow the applicable Third Party Provider to access your data and other materials and to take any other actions as required for the interoperation of the Third Party Service with the Services, and any exchange of data or other materials or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. Cloudforest is not responsible for any disclosure, modification or deletion of your data or other materials, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or other materials.
6.5 The relationship between you and any Third Party Provider is solely and strictly between you and such Third Party Provider, and Cloudforest has no obligation to intervene in any dispute arising between you and a Third Party Provider.
6.6 Under no circumstances shall Cloudforest be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or any other damages or loss whatsoever, that result from any Third Party Services and/or your contractual relationship with any Third Party Provider. These limitations shall apply even if Cloudforest has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
6.7 You agree to indemnify and hold Cloudforest, its affiliates, respective officers, directors and employees harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your use of a Third Party Service and/or your relationship with a Third Party Provider.
6.8 Additional Services
6.8.1 From time to time, Cloudforest may, in its sole discretion, invite you to use, on a trial basis, pre-release or beta features that are in development and not yet available to all merchants (“Beta Services”). Beta Services are not part of the Services, and Beta Services may be subject to additional terms and conditions, which Cloudforest will provide to you prior to your use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Cloudforest Confidential Information and subject to the confidentiality provisions in this agreement. Without limiting the generality of the foregoing, you agree that you will not make any public statements or otherwise disclose your participation in the Beta Services without Cloudforest’s prior written consent. Cloudforest makes no representations or warranties that the Beta Services will function. Cloudforest may discontinue the Beta Services at any time in its sole discretion. Cloudforest will have no liability for any harm or damage arising out of or in connection with a Beta Service. The Beta Services may not work in the same way as a final version. Cloudforest may change or not release a final or commercial version of a Beta Service in our sole discretion.
6.8.2 Cloudforest allows you to add pixels to your Cloudforest Store to enable you or a third party to track customer events (the “Cloudforest Pixel Manager”). You may manage your pixels from within the user interface in the administrative console of your user account.
126.96.36.199 Cloudforest may collect information associated with the Cloudforest Pixel Manager, such as how pixels are used, and how and what scripts are added. Cloudforest may use this data to improve, maintain, protect and develop the Cloudforest Pixel Manager.
- Confidentiality and Data Protection
8.1 Any information disclosed by or on behalf of one Party to the other Party during the term of this Agreement that is identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, including, without limitation, all information pertaining to a Party’s business, technical processes and formulas, software, customer and prospective customer lists, product designs, sales, costs, unpublished price lists and other financial information, business plans, and marketing data, constitute “Confidential Information.” The Party receiving Confidential Information of the disclosing Party will maintain safeguards against its destruction, loss, alteration or disclosure, which safeguards shall be consistent with industry best practices and no less rigorous than the protections afforded by the receiving Party to its own proprietary information and will not, during or after the term of this Agreement, (a) use any such Confidential Information for any purpose other than to perform the receiving Party’s obligations or exercise the receiving Party’s rights under this Agreement and (b) disclose any such Confidential Information to any third party, other than disclosures made by Cloudforest pursuant to the activities contemplated in this Agreement. Notwithstanding the foregoing, the obligations of this Section 7 do not apply to information which is: (i) generally available to the public, without any obligation of confidentiality, other than by a breach of this Agreement by the receiving Party; (ii) rightfully received by the receiving Party from a third party without any obligation of confidentiality; (iii) independently developed by the receiving Party without reference to or reliance on the other Party’s Confidential Information; or (iv) generally made available to third parties by the disclosing Party without restriction on disclosure. Upon termination of this Agreement, or upon the disclosing Party’s earlier request, the receiving Party will return, or destroy and certify as such, all of the disclosing Party’s Confidential Information in the receiving Party’s possession or under the receiving Party’s control and will cease all use of such Confidential Information.
8.2 In relation to the Services, each Party shall comply with all requirements of applicable data processing laws and regulations (the “Data Protection Legislation”). Each Party acknowledges that, for the purposes of the Data Protection Legislation, you are the data controller and Cloudforest is the data processor. For the avoidance of doubt, you may not use any personal information (including e-mail addresses or other contact details) that is collected or acquired through your use of the Services in any way unless you have the lawful right to do so.
8.3 The Parties agree to the terms of the data processing agreement set forth in Annex 1 (the “Data Processing Agreement”) in relation with Cloudforest’s processing of personal data on your behalf.
- Record Retention
Cloudforest shall compile and retain records of transactions, User Content and data related to the Services provided to you. You acknowledge and agree that Cloudforest may preserve, delete, and/or disclose any of the foregoing if required to do so by law or in the good faith believe that such preservation, deletion or disclosure is reasonably necessary to: a) comply with legal process; b) enforce this Agreement; or c) defend Cloudforest’s rights and/or those of any third parties.
- Limitation of Liability
10.1 All usage of the Services is at your own risk.
10.2 Neither Cloudforest nor its affiliates, nor any of their respective officers, directors, members, shareholders, employees, agents, third party content providers, or licensors warrant that the Services or the Software will be uninterrupted, timely, secure or error-free, nor do they provide any warranty as to (a) the results that may be obtained from the use of any Service or the Software including their accuracy, reliability, quality, adequacy, timeliness or authenticity; or (b) the accuracy, reliability, quality, adequacy, timeliness or authenticity of any advertisements, information, services, products, merchandise and/or other material that is purchased through or provided via the Services. The Services and the Software are provided on an “as is” and “as available” basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, non-infringement or fitness for a particular purpose.
10.3 In no event will Cloudforest, or any person or entity involved in creating, producing or distributing the Services or Software, be liable to you or to any other person or entity for any indirect, incidental, special, punitive or consequential damages, or loss of profit or revenue arising out of the use of or inability to use the Services or Software, including but not limited to losses incurred as a result of the modification of content or the failure of any content to transfer to a Cloudforest Website, any decrease in web traffic, SEO ranking, or any other impact on your business, whether financial or otherwise. This disclaimer of liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for breach of contract, tortious behavior, negligence, or under any other cause of action regardless of whether Cloudforest had notice of the cause or such cause was foreseeable. These disclaimers and limitations shall apply even in the event of a fundamental or material breach or a breach of the fundamental or material terms of this Agreement. To the maximum extent permitted by law, Cloudforest’s liability to you under this Agreement shall be limited to the Service Fees paid by you to Cloudforest in the six (6) months immediately preceding the date the cause of action arose.
10.4 You agree to indemnify and hold harmless Cloudforest, its affiliates, respective officers, directors and employees, from and against any and all claims of third parties relating to, arising out of or resulting from use of the Services and Software, other than claims arising from gross negligence or wilful misconduct of Cloudforest, its affiliates, respective officers, directors and/or employees.
10.5 By using any Service and agreeing to this Agreement, you acknowledge that you have not relied on any prior representation, warranty or other assurance made by or on behalf of Cloudforest, and you waive all rights and remedies which might otherwise be available to you in respect of such representation, warranty or other assurance, provided that nothing in this Section shall exclude or limit any liability for fraud.
- DMCA Notice and Takedown Procedure
Cloudforest supports the protection of intellectual property and asks Cloudforest merchants to do the same. It’s our policy to respond to all notices of alleged copyright infringement. If someone believes that one of our merchants is infringing their intellectual property rights, they can send a DMCA Notice to Cloudforest’s designated agent using our form. Upon receiving a DMCA Notice, we may remove or disable access to the Materials claimed to be a copyright infringement. Once provided with a notice of takedown, the merchant can reply with a counter notification using our form if they object to the complaint. The original complainant has 14 business days after we receive a counter notification to seek a court order restraining the merchant from engaging in the infringing activity, otherwise we restore the material. Learn more at Reporting Intellectual Property Infringement.
- Privacy and Data Protection
12.2 To the extent that Cloudforest processes personal information of your customers as a “data processor” or “service provider” under certain data privacy or protection laws, including the EU or UK General Data Protection Regulation and the California Consumer Privacy Act, Cloudforest’s collection and use of personal information is also subject to our Data Processing Addendum.
- Term and Termination
- 1 The term of these Terms of Service will begin on the date of your completed registration for use of a Service and continue until terminated by us or by you, as provided below (the “Term”).
13.2 Without affecting any other right or remedy available to it, either Party may terminate this Agreement at any time. If you wish to cancel your Cloudforest User Account and terminate this Agreement, you must do so either through your User Account admin dashboard or by sending an email to [email protected] with the email subject line “Cancel Account”. Please note that if your User Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Site and Services, including, but not limited to, any reviews or Feedback. Cloudforest may suspend and/or terminate any one or more of the Services at any time without notice.
13.3 Cloudforest may terminate the Services with immediate effect by giving written notice to you if:
13.3.1 you commit a material breach of any of the provisions of this Agreement; or
13.3.2 you become insolvent, cease to trade or have a liquidator, receiver, manager, administrator or administrative receiver or similar officer appointed in respect of the whole or part of your business, or enter into any arrangement or composition with your creditors, or are made bankrupt, or undergo a similar or analogous event in any jurisdiction;
13.3.3 you fail to pay any amount due and payable pursuant to Section 3, after Cloudforest has sent you a notification of payment failure; or
13.3.4 your User Account has been inactive for a period of ninety (90) days or more; or
13.3.5 if you object to the use of any sub-processor according to the Data Processing Addendum.
13.4 Upon termination, Cloudforest may in its sole discretion close your User Account, delete any existing data from your User Account, take your Cloudforest Store offline, and refuse any future submission of data from you.
13.5 Upon termination, all unpaid Fees shall become due and payable. Cloudforest will cease providing you with the Services and you will no longer be able to access your User Account.
- Amendments to Agreement
Cloudforest may update or replace this Agreement without prior notice to you and at our sole discretion at any time by posting a new version to the Cloudforest website. Your continued access to or use of the Services and/or Software indicates your acceptance of the current published version of the Agreement.
- Force Majeure
Cloudforest shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
16.1 Untrodden Inc dba Cloudforest does not accept legal notices or service of legal process by any means other than hard copy post delivered to 2150 Hyde St., #11 San Francisco, CA USA. For the avoidance of doubt and without limitation, Untrodden Inc therefore does not accept notices or legal service deposited upon any of its affiliates or subsidiaries.
16.2 All other notifications given in connection with this Agreement may be in writing via email. Cloudforest’s email address for such purposes is [email protected]
- Assignment and other Dealings
17.1 Cloudforest may at any time assign, subcontract, delegate or deal in any other manner with any or all its rights and obligations related to the Services and this Agreement.
17.2 You shall not assign, transfer, delegate or deal in any other manner with any of its rights and obligations related to the Services and this Agreement without the prior written consent of Cloudforest, to be given or withheld in Cloudforest's sole discretion.
- Governing Law and Jurisdiction
18.1 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of the State of California, USA. Subject to Section 16.2, each Party hereby consents to the exclusive jurisdiction and venue of courts in Massachusetts, USA and stipulates to the fairness and convenience of proceedings in such courts for all disputes, both contractual and non-contractual, arising out of or relating to the use of the Services. All claims against Untrodden Inc arising from or relating to the Services must be heard and resolved in a court of competent subject matter jurisdiction located in the State of California. Use of the Services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including, without limitation, this section.
18.2 Nothing in this Section 16 shall limit the right of Untrodden Inc to take proceedings against you in any other court, or courts, of competent jurisdiction. The foregoing shall not apply to the extent that applicable law in your country of residence requires application of another law and/or jurisdiction.