TERMS OF SERVICE


Last Updated: Tuesday, October 02, 2012.


This Divecloud website and service (the "Site" or the "Service") and the Diverlog software (the "Software" or "Download Software") are owned and operated by Pelagic Pressure Systems, its parent its Subsidiaries, ("we", "us" or "Pelagic"). By using and accessing Pelagic’s Site and/or Software, you ("you", "user" or, "end user") agree to these Terms of Service (“Terms”, "Terms of Service,” or "Agreement"). In addition, any terms agreed to at the time of download of the Software apply in full; these terms supersede any terms agreed to at the time of download if the Service is being used from within the Software. If the Site or Service is being accessed directly on the web and not via the Software, then the Software terms do not apply at that time.

BY ACCESSING AND USING THIS SITE YOU ACKNOWLEDGE AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING ANY ADDITIONAL GUIDELINES, AND ANY FUTURE MODIFICATIONS (COLLECTIVELY, THE "TERMS"). IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICE. Should you have any questions concerning this Agreement, please contact legal@divecloud.net.

MODIFICATIONS TO THIS AGREEMENT

We reserve the right to modify or replace these Terms at any time at Pelagic’s sole discretion. We will indicate the date these Terms were last updated. Any changes will be effective upon posting the revised version of these Terms on the Service (or such later effective date as may be indicated on the revised Terms). You acknowledge and agree that it is your responsibility to review these Terms of Service from time to time. Therefore, we encourage you to check online at divecloud.net/terms.html the date of these Terms to see if these Terms have been updated. Your continued use of the Site, Software, and/or Service after such modifications to this Agreement will constitute acknowledgment of the modified Terms of Service and agreement to abide and be bound by the modified Terms of Service. If you do not agree to any of the changes, you must cancel and stop using the Service.

PRIVACY POLICY

Your privacy is important to us. Pelagic's Privacy Policy is hereby incorporated into these Terms by reference. You may find a copy of Pelagic’s Privacy Policy at divecloud.net/privacy.html. Please read this notice carefully for details relating to the collection, use, and disclosure of your personal information.

Individual Features and Services; UPDATES

When using the Service and/or the Software, you will be subject to any additional posted guidelines or rules applicable to specific services and software, and features which may be posted from time to time (the “Guidelines"). All such Guidelines are hereby incorporated by reference into the Terms.

We reserve the right, in Pelagic’s sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Services and/or Software at any time. We may add or remove functionality or features, and we may suspend or stop a Service altogether. We shall not be liable for any such limitations, modifications, interruptions, suspensions or discontinuance, or any purported losses, harm or damages arising from or related thereto.

OWNERSHIP; PROPERTY RIGHTS

You acknowledge and agree that all content and information on the Site and in Software not supplied by you may be protected by proprietary rights and laws. All contents of the Site, Services, and Software including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement are: Copyright © Pelagic, and/or the proprietary property of its suppliers, affiliates, or licensors. All Rights Reserved. We may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter that is part of the Service and/or Software. Unless we have granted you licenses to Pelagic’s intellectual property in these Terms, Pelagic’s providing you with the Service does not give you any license to Pelagic’s intellectual property. Any rights not expressly granted herein are reserved. You agree not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, transfer, create derivative work from, sell or re-sell any content or information obtained from or through the Site, Software, or Service, unless you have the right to such content.

YOUR ACCOUNT; PASSWORD

To obtain access to Services and Software, you may be required to obtain an account (become a "Registered User"), by completing the registration form and choosing a password. The Services are not intended for use by you if you are under 13 years of age. By agreeing to these Terms, you are representing to us that you are over 13 years of age. Until you apply for and are approved to become a Registered User, at Pelagic’s discretion, your access to the Service and/or Software will be limited to the areas that we make available to the general public or unregistered users. When registering with us you must: (a) provide true, accurate, current and complete information ("Registration Data") as requested by the registration form and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. We may withdraw such approval at any time in our sole discretion, with or without cause.

When you register you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you will immediately notify Pelagic. We will not be liable for any loss or damage arising from any unauthorized use of your accounts. You may be liable for the losses incurred by Pelagic or others due to any unauthorized use of your account.

USER SUBMITTED CONTENT

Except for material that we license to you, we do not claim ownership of any Content that is transmitted, stored, or processed in your account(s). We also do not control, verify, or endorse the Content that you and others make available on the Services or Software. We provide functions that allow you to control who may access your Content. If you enable the features that allow you to share the Content with others, you agree that we have no liability regarding content you have shared. You hereby grant us the right, to use, modify, adapt, reproduce, distribute, display and disclose Content posted using the Services or Software to the extent necessary to provide the Services or Software or as otherwise permitted by these Terms. You represent and warrant that: (a) you have all the rights in the Content necessary for you to use the Services and/or Software and to grant the rights in this Section; and, (b) the storage, use or transmission of the Content does not violate any law or these Terms.

ACCEPTABLE USE

You must not use the Services and/or Software to harm others or the Services and/or Software. You must not use the Services and/or Software to harm, threaten, or harass another person, organization, or Pelagic. You must not: damage, disable, overburden, or impair the Services and/or Software (or any network connected to the Service); resell or redistribute the Services and/or Software or any part of it; use any unauthorized means to modify, reroute, or gain access to the Services and/or Software or attempt to carry out these activities; or use any automated process to access or use the Services and/or Software. We retain the right to block or otherwise prevent delivery of any type of file, email or other communication to or from the Services and/or Software as part of Pelagic’s efforts to protect the Services and Software, protect Pelagic’s customers, or stop you from breaching these Terms. The technology or other means we use may hinder or break your use of the Services and Software.

TERMINATION OF USE

You may stop using the Services at any time. We reserve the right, to temporarily suspend or terminate your access to the Service at any time in Pelagic’s discretion, with or without cause, and with or without notice, without incurring liability of any kind. You acknowledge that if your access to the Service is suspended or terminated, you may no longer have access to the Content that is stored with the Service.

CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION

By registering with us, you understand that we may send you communications or data regarding the Services and/or Software, including but not limited to (a) notices about your use of the Services and/or Software, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding products and services, via electronic mail. We will give you the opportunity to opt-out of receiving electronic mail from us by following the opt-out instructions provided in the message.

THIRD-PARTY SITES

We may provide links to other websites and/or services maintained by third parties (Third Party Sites). These links are provided solely as a convenience and do not imply endorsement of, or association with, the party by Pelagic. ACCESS AND USE OF THIRD PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH THIRD PARTY SITES, IS SOLELY AT YOUR OWN RISK. When you leave the Service and/or Software, our terms and policies no longer govern. You should review applicable terms and policies, including the privacy and data gathering practices, of any Third Party Sites.

DISCLAIMER OF WARRANTY

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PELAGIC DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PELAGIC OR THROUGH THE SERVICE AND/OR SOFTWARE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT THE TERM PELAGIC INCLUDES PELAGIC'S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUPPLIERS, LICENSORS, AFFILIATES AND SUBCONTRACTORS.

YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE AND/OR SOFTWARE IS AT YOUR SOLE RISK. THE SERVICE AND/OR SOFTWARE, USER SUBMISSIONS AND ANY THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE AND/OR SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.

PELAGIC DOES NOT WARRANT THAT THE SERVICE AND/OR SOFTWARE, USER SUBMITTED CONTENT, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SERVICE AND/OR SOFTWARE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

PELAGIC DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE AND/OR SOFTWARE OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICE AND/OR SOFTWARE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

We reserve the right to change the content and information at any time without notice. Some jurisdictions do not allow disclaimer of implied warranties. In such jurisdictions, some of the foregoing disclaimers as to implied warranties may not apply.

LIMITATION OF LIABILITY; LIMITATION OF DAMGES

In no event shall Pelagic or its affiliates be liable for any indirect, incidental, special, punitive damages or consequential damages of any kind, or any damages whatsoever arising out of or related to your use of the Service and/or Software, including the content and other information obtained therein. This limitation of liability applies regardless of, but is not restricted to, whether the alleged liability arose from authorized or unauthorized access to or use of content accessed using the Service and/or Software, any ability or inability to access content using the Service and/or Software, and any modification of content accessed using the Service and/or Software.

IN NO EVENT SHALL PELAGIC TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE AND/OR SOFTWARE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF THE AMOUNT OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID PELAGIC IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.

YOU ACKNOWLEDGE AND AGREE THAT WE HAVE OFFERED OUR PRODUCTS AND SERVICES, SET PRICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND PELAGIC, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND PELAGIC. YOU ACKNOWLEDGE AND AGREE THAT PELAGIC WOULD NOT BE ABLE TO PROVIDE THE SERVICE AND/OR SOFTWARE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

These limitations shall apply to the fullest extent permitted by law. Certain jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, thus the above limitations may not apply to you.

INDEMNITY

You agree to indemnify and hold harmless Pelagic, its suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney's fees) arising out of: (1) your use or misuse of the Service and/or Software; (2) your User Submissions, including Pelagic’s use, display or other exercise of its license rights granted herein with respect to your User Submissions; (3) your violation of these Terms; (4) your violation of the rights of any other person or entity, including claims that any Content infringes or violates any third party intellectual property rights; and (5) your breach of the foregoing representations, warranties, and covenants. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Pelagic. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

CHOICE OF LAW

You agree that the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Pelagic, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the substantive laws of the State of California, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and Pelagic both agree to submit to the personal jurisdiction of a state court located in Alameda County, California or the United States District Court for the Northern District of California, for any actions for which either party retains the right to seek injunctive or other equitable relief, as further described in the Dispute Resolution provision below.

DISPUTE RESOLUTION

If a dispute arises between you and Pelagic, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Pelagic agree that we will resolve any claim or controversy at law or equity that arises out of these Terms, the Services, and/or the Software (a "Claim") in accordance with one of the subsections. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.

(a) Arbitration Option. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

(b) Improperly Filed Claims. All claims you bring against Pelagic must be resolved in accordance with this section (Dispute Resolution). All claims filed or brought contrary to this section (Dispute Resolution) shall be considered improperly filed. Should you file a claim contrary to this section (Dispute Resolution), Pelagic may recover attorneys' fees and costs up to $1,000, provided that Pelagic has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

Waiver

A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Pelagic to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.

Severability

If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

Assignment

The Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Pelagic without restriction. Any assignment attempted to be made in violation of these Terms shall be void.

No Agency

You agree that no joint venture, partnership, employment, or agency relationship exists between you and Pelagic as a result of these Terms or use of the Service and/or Software. You further acknowledge that by submitting Content, no confidential, fiduciary, contractually implied, or other relationship is created between you and Pelagic other than pursuant to these Terms.

Headings

The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.

Entire Agreement

This is the entire agreement between you and Pelagic relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. These Terms shall not be modified except in a writing, signed by both parties, or by a change to these Terms or Guidelines made by Pelagic as set forth above.