1. The Agreement. You agree that no contract or agreement is formed and you have no rights to the Service, unless and until SendThisFile has agreed to provide you the Service. You agree that SendThisFile may amend or modify the Agreement at any time, without prior notice. The changes become effective immediately upon posting such amended or modified terms on the Site or if SendThisFile otherwise notifies you of such amended or modified terms. You agree that, if you use the Site and/or the Service after SendThisFile so posts or provides such notice of such amendments or modifications, you have accepted the Agreement as amended or modified. If you do not accept and abide by such amended or modified Agreement, you may not use the Site or the Service. Subject to the terms and conditions of the Agreement, agreement to the Agreement allows you to view the portions of the Site that are generally available to the public and download such portions (but only as strictly necessary to aid in the viewing of the Site and only if all copyright and other proprietary notices are duplicated) solely for the User's personal, non-commercial uses.
2. The Service. The SendThisFile® service is a computer file transfer and storage service offered by SendThisFile through the Site, the attributes and functionality of which varies depending on the level of service to which you may subscribe, all as more specifically described in the Site, together with the Support Services (the "Service"). One level of the Service includes accounts for limited Service to registered users and recipients of an email from a registered user or the user of a SendThisFile® FileBox, who are not charged fees for use of the Service (each a "Free User"). Other levels of the Service to registered users are obtained by payment of fees (each a "Paid User"). Depending which level of Service you choose, you understand and agree that the Service may include advertisements of third parties and from SendThisFile. Subject to the other terms and conditions of the Agreement, agreement to the Agreement allows you utilize the Service in accordance with the applicable level specified only for your lawful purposes and only as strictly necessary to utilize the Services. Additional terms and restrictions applicable to use of Content are specified in this Agreement. Except as specifically stated in this Agreement, no other right or license is granted to you for the Site or the Service, and any other use is strictly prohibited.
3. Support Services. During the term and for Paid Users, the Service includes (a) a reasonable amount of assistance in the use of the Service and reasonable diagnosing and attempting to resolve problems with the use or delivery of the Service, and (b) updates and revisions to the Site and Services that SendThisFile elects to provide to provide to Paid Users generally (collectively, the "Support Services"). Support Services are only provided during SendThisFile's regular business hours and exclude weekends and SendThisFile holidays. SendThisFile may condition the timing and delivery of Support Services in whatever method or manner it chooses, which may include communication via email or through the live chat system through the Site. In order to take advantage of the Support Services, you may be required to purchase additional or different equipment or services from third parties. SendThisFile has no obligation to provide any other assistance, support, maintenance, or other services or to perform any assistance by any other method, such as at your location. If SendThisFile, in its sole discretion, agrees to provide any additional services, such additional service shall be governed by these Terms.
4. Fees and Payment. Paid Users shall be responsible for paying SendThisFile the fees and other charges and expenses as described on the Site for the applicable Services. SendThisFile may modify such fees at its discretion, which shall take effect at the end of the current term of Service. Such fees and expenses are due and payable prior to SendThisFile performing the Service, but if SendThisFile performs the Service prior to receiving payment or if your form of payment is not in good funds or is reversed for whatever reason, your payment is due upon notice from SendThisFile. All such payments shall be paid in full when due, without right of deduction or set-off. You are solely responsible for the payment of any and all taxes resulting from the Service or the Agreement. In addition to any other remedies available to SendThisFile, you agree to pay a charge for any amounts that are more than thirty (30) days past due at the rate of the lesser of one and one-half percent (1.5%) per month or the greatest rate allowed by law. When paying by credit or debit card, Paid User authorizes SendThisFile to charge such card for the full amount authorized, together with any other amounts due and owing to the Company as specified in the Agreement, or in the Site, and Paid User agrees to pay such amounts in accordance with Paid User's agreement with the card issuer.
5. Your Obligations and Agreements. As a condition for using the Site and/or the Service, you understand and agree:
(b) Use by Minors. The Service is not available to minors. By accepting these Terms, you agree that you are capable of entering into a binding agreement.
(c) Security. You must comply with and not attempt to disable or circumvent any security device or procedure associated with the Site or the Service. You agree you are responsible for maintaining the confidentiality of the password you choose to use in conjunction with the Service. You may not allow anyone else to use your account without prior, written approval of SendThisFile. You agree that SendThisFile will not be liable for any loss you may incur as a result of someone else using your password, either with or without your knowledge. You agree not to impersonate anyone else, or falsely represent your affiliation with any other person or entity.
(d) Unlawful Use. You will not use the Site or Service, in whole or in part, for any unlawful purpose. It is not the responsibility of SendThisFile to monitor your activities to insure compliance with any federal, state, or local laws or regulations, although SendThisFile reserves the right to do so at its discretion.
(e) Content. You are solely responsible for all your activities when using the Service, including, without limitation, all content you transmit through the Site or with the Service. SendThisFile is not responsible for the content of other persons (including, without limitation, Viruses or content available through links). SendThisFile does not have an obligation to monitor your activities, your content, or the content of other person, although SendThisFile reserves the right to do so in its sole discretion. SendThisFile may take any action with respect to your activities, your content, or the content of any other person as SendThisFile deems necessary (including, without limitation, accessing, reading, preserving, disclosing, removing, or refusing to distribute the same) in order to (1) satisfy any applicable law or governmental order, (2) enforce the Agreement or investigate any potential violation of the Agreement, (3) detect, prevent, or otherwise address acts of fraud or security or technical issues, (4) respond to requests for Support Services, (5) protect the rights, property, or safety of SendThisFile or any person or preserve any of the foregoing from liability, or (6) exercise any other right or remedy available to SendThisFile.
(f) Interference with Others. You will do nothing to impair the normal operation of the Site or Service, and you will do nothing to restrict or inhibit any other person from using and enjoying the Site and Service. You will do nothing that will damage or disable the Site or Service. You will not attempt to access unauthorized access to information or content belonging to any other party using the Site or Service.
(g) Prohibited Activities. You will not use the Service to send chain letters, unsolicited commercial email (also known as spam), junk email, or other unsolicited messages; transfer any material that is protected by any patent, trademark, trade secret, copyright or other proprietary rights of any party unless you have sole ownership over that material or have received all necessary consents to distribute that material; transmit files that contain viruses, Trojan horses, worms, corrupted files, or any other software, programs, or code that may damage the operation of another's computer or the data or property of another (a "Virus"); or transmit any material that is harmful to minors. SendThisFile may supplement this list of prohibited activities from time to time, which will be effective upon notice to you and/or posting on the Site.
(h) Disclosure of Information. SendThisFile, in its sole discretion, may disclose any information about you, your account, or your activities regarding the Service that SendThisFile deems necessary to satisfy any applicable law, regulation, legal process or governmental request or enforce the Agreement. The Site and the Service is offered, stored, and processed in the United States. By using the Service, you consent to transfer of information outside of your country.
(i) Data Storage. When using the Service, your personal data is temporarily stored on our servers as part of the normal operating process of providing the Service. Regardless of any encryption used, or other precautions taken, you understand that SendThisFile cannot guarantee complete privacy with regard to the files you transmit over the Service. You agree that SendThisFile has no responsibility or liability for the deletion, corruption, or failure to store any data stored or transmitted by the Service. You understand that SendThisFile does not back up the files on the Site or through the Service, and you agree that you are responsible for keeping back-up copies of all files uploaded to the Service.
6. DMCA Complaints.
(a) Policy. It is SendThisFile's policy to respond to notices of alleged infringement in compliance with the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws, which may include removing or disabling access to material claimed to be the subject of infringing activity. If SendThisFile removes or disables access to comply with the DMCA, SendThisFile will make a good-faith attempt to contact you so that you may make a counter notification pursuant to sections 512(g)(2) and (3) of the DMCA. It is SendThisFile's policy to document all notices of alleged infringement on which SendThisFile acts. Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is infringing or not infringing the copyrights of others.
(b) Notice. To file a notice of infringement with SendThisFile, you must provide a written communication (by fax or regular mail-not by email, except by prior agreement) that: (1) identifies in sufficient detail the copyrighted work that you believe has been infringed, (2) identifies the material that you claim is infringing the copyrighted work you listed, including any file name, message ID, and/or URL of such material, (3) provides information reasonably sufficient to permit SendThisFile to contact you (email address is preferred), (4) includes the following statement: "I have a good faith belief that use of the copyrighted materials described above on the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law," (5) is signed by you, and (6) is sent to the address or number written below.
(c) Counter Notice. You may make a counter notification pursuant to sections 512(g)(2) and (3) of the DMCA. When SendThisFile receives a counter notification, SendThisFile will reinstate the material in question. To file a counter notification, you must provide a written communication (by fax or regular mail-not by email, except by prior agreement) that: (1) identifies the specific file names, message IDs, and/or URLs of material that SendThisFile has removed or to which SendThisFile has disabled access; (2) includes your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or Kansas, if your address is outside of the United States), and that you will accept service of process from the person who provided notification to SendThisFile of infringement or an agent of such person; (3) includes the following statement: "I swear, under penalty of perjury, that I have a good faith belief that each search result or message identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled;" (4) is signed by you; and (5) is sent to the address or number written below.
7. Term, Termination, and Remedies.
(a) Term. If you are a Paid User, the term of the Services and the Agreement is month-to-month beginning at the first day of each calendar month (or, if you subscribed after the first of a calendar month, on the effective date of the beginning of the Services) and ending on the last day of each calendar month.
(b) SendThisFile Termination. Except as stated below, you agree that SendThisFile may modify, suspend, discontinue, or otherwise terminate the Service or the Agreement, on a temporary or permanent basis, at any time, in whole or in part, for any reason or no reason, with or without notice, and without liability to you. For example and without limitation, SendThisFile may terminate or suspend your access to the Service for lack of use; for failure to pay account fees within the period of time designated by SendThisFile; for registering more than one free account; for engaging in multiple, simultaneous uploads from within either one free account, or by using multiple free accounts; for maintenance of the Site or performance of Support Services; for failure to follow the rules posted on the Site or in these Terms; for actions outside these Terms; or for any other reason determined by SendThisFile. Unless you have violated the terms and conditions of the Agreement, if you are a Paid User, a material modification that negatively impacts the Service or a suspension, discontinuance, or other termination of the Service or the Agreement will occur at the end of the current term of the Service. Notwithstanding the foregoing, SendThisFile may make a material modification that negatively impacts the Service or suspend, discontinue, or otherwise terminate the Service or the Agreement at any time by refunding you the prorated portion of the fees you have paid for the current term of the Service through the end of that term. Continuation of the Service by a Paid User after any such material modification or suspension constitutes the Paid User's agreement to waive any claim for any refund of fees.
(c) Other Remedies. In addition or as an alternative to termination, cancellation, or discontinuance of the Site and/or the Service, SendThisFile may take whatever action is deems necessary or convenient, in its sole discretion, in the event of your breach of Agreement. Such actions may include, without limitation, suspending your access to the Site, the Service, or files or content in your account, deleting your account(s), deleting files you have uploaded, blocking your IP address, or any other technical or legal means at SendThisFile's disposal.
(d) Your Termination. You may cancel your use of the Services and the Site at any time by providing notice to SendThisFile. Except as otherwise stated in these Terms, you shall have no right to a refund of any fees paid, and you shall be obligated to make any payments due SendThisFile through the end of the term of the Services, if any.
(e) Affect of Termination. Upon expiration, termination, cancellation, or discontinuance of the Site and/or the Service to your right to use the Site and/or Service immediately ceases and you will have no right to access your account or any files or other content contained in your account, although residual copies may be retained in SendThisFile's system. SendThisFile may retain any such files or other content at its discretion. The provisions of Sections 4 through 11 of these Terms shall survive the expiration, termination, cancellation, or discontinuance of the Site and/or the Service.
8. Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE AND/OR THE SERVICE IS AT YOUR SOLE RISK. SENDTHISFILE AND ITS SUPPLIERS PROVIDE THE SERVICE "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE AND NON-INFRINGEMENT. SENDTHISFILE MAKES NO WARRANTY THAT THE SITE OR THE SERVICE WILL: MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, PROPERLY STORED OR DELIVERED, ACCURATE, SECURE, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS. ANY MATERIAL TRANSMITTED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE TRANSMISSION OF ANY SUCH MATERIAL.
9. Limitation of Liability. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, SENDTHISFILE DOES NOT CONTROL, ENDORSE OR VALIDATE ANY TRANSMISSIONS SENT VIA THE SERVICE, THEREFORE, SENDTHISFILE SPECIFICALLY DISCLAIMS AND YOU HEREBY RELEASE SENDTHISFILE FROM ANY LIABILITY RESULTING FROM YOUR USE OF THE SITE, PARTICIPATION IN THE SERVICE, YOUR INABILITY TO USE THE SERVICE, OR THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE. IN NO EVENT SHALL SENDTHISFILE AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, LOSS OF DATA OR LOSS OF PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) EVEN IF SENDTHISFILE OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, FOR ANY CONTENT OR MATERIALS OBTAINED THROUGH THE SITE, THE SERVICE, OR OTHERWISE ARISING OUT OF THE SAME, THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL STATEMENTS OR CONDUCT OF ANY OTHER PARTY OR ANY INFRINGEMENT OF ANOTHER'S RIGHTS, INCLUDING INTELLECTUAL PROPERTY, OR ANY OTHER MATTER RELATING TO THE SITE OR THE SERVICE. REGARDLESS OF THE INCIDENT, IN NO CASE SHALL SENDTHISFILE BE LIABLE FOR MORE THAN THE CURRENT MONTH'S FEES PAID, IF ANY.
Without limiting the foregoing, under no circumstances shall SendThisFile or its suppliers be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
10. Intellectual Property Rights. Except as stated herein, you acknowledge that SendThisFile owns all right, title, and interest in and to the Site and Service, including, without limitation, all content and intellectual property rights therein, which are protected by U.S. and international intellectual property laws. SendThisFile is a service mark and SendThisFile® and the Yellow File Folder Logo are federally registered service marks of SendThisFile, Inc. Other product and company names mentioned herein may be the trademarks or service marks of their respective owners. You agree that you will not in any way, directly or indirectly copy, reproduce, produce, distribute, transmit, alter, modify, or create derivative works of the Site, the Service, or any content therein. Any rights not expressly granted herein are reserved.
11. Data Breach Procedures for Enterprise Plans. The following explains SendThisFile, Inc's data breach procedures for Enterprise Plans (including Enterprise Plans on dedicated servers). Data breach is defined as unauthorized access to files uploaded by SendThisFile users.
SendThisFile Employee Guidelines
(a) Communication. Employees will not communicate with anyone other than their supervisor(s) or the principle partners of SendThisFile, Inc. about any details or generalities surrounding any suspected or actual incident.
(b) Documentation. Employees will document any information pertinent to the incident. If known, this must include date, time, and the nature of the incident.
1. Contain, Eradicate, Recover and perform Root Cause Analysis.
2. Notify SendThisFile account owner and sender of the file or files.
3. Alert all necessary authorities.
4. Legal counsel to perform an analysis of legal requirements for reporting compromises.
5. Collect and protect information associated with the intrusion.
6. Eliminate the intruder's means of access and any related vulnerabilities.
7. Research potential risks related to or damage caused by intrusion method used.
8. Perform root cause analysis.
(a) Choice of Law; Venue. Venue. You agree that this agreement shall be governed by the laws of the State of Kansas, U.S.A. You hereby irrevocably consent to the exclusive jurisdiction and venue of courts in Sedgwick County, Kansas, U.S.A. in all disputes arising out of or relating to the use of the Site or Service.
(b) Beneficiaries. You are not a beneficiary of any obligation SendThisFile owes to a third party, and no other person is a beneficiary of any obligation SendThisFile owes to you.
(c) Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and SendThisFile as a result of the Agreement, or the use of the Site or Service.
(d) Indemnification. You agree to indemnify and hold SendThisFile, its owners, subsidiaries, affiliates, officers, directors, and employees, harmless from any claim, demand, or damage, including reasonable attorneys' fees, asserted by any third party due to or arising out of your use of or conduct in the use of the Site and/or Service.
(e) Severability. If any provision of the Agreement is held to be invalid or unenforceable including, but not limited to, the warranty disclaimers and liability limitations set forth above, then such provision shall be struck and the remaining provisions shall be enforced.
(f) No Waiver. SendThisFile's failure to act with respect to a breach by you or others does not waive SendThisFile's right to act with respect to subsequent or similar breaches.
(g) No Assignment. You may not assign or transfer any right or duty under the Agreement, including, without limitation, the Service, and any attempt to the contrary is void.
(h) Integration; Amendment. The Agreement is the entire understanding and agreement between you and SendThisFile with respect to the subject matter hereof. When in conflict, these Terms control over other provisions of the Agreement. Except as specified herein, no amendment may be made to the Agreement unless the same is in writing and signed by an authorized representative of SendThisFile.
(i) Headings. The section titles in these Terms are for convenience only and have no legal or contractual effect.
(j) Copies. A printed version of this agreement shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
The SendThisFile® service is operated by SendThisFile, Inc. Wichita, Kansas, U.S.A.
Address and Fax Number for DMCA Complaints, Notices, and Counter Notices:
Attn: DMCA Complaints
2250 N. Rock Rd. Ste. 118-136
Wichita, KS 67226-2331
Fax: 215-895-9813, Attn: DMCA Complaints