Last Updated: 10-April-12
YouSendIt, Inc. ("YouSendIt") provides managed file sharing and transmission services which enable users to access, store, send, receive, edit, sync, share, and append electronic signatures to, User Files (defined below) via YouSendIt’s proprietary platform (any and all of the foregoing the "Services"). The Services include our website www.yousendit.com and its sub domains (collectively the "Site"), our software plug-ins, tools and applications (including any updates, new versions or new releases thereof) (each a "YouSendIt Application"), our File Sync and Share Services (defined below) and any other products and services offered by YouSendIt via the Services.
These Terms of Service also include your consent to our automatic accessing of your computer for purposes syncing and storage User Files in connection with your use of our File Sync services, and the sharing of User Files with third parties designated by you in connection with your use of our File Share services. Please see the section below titled “Consent to Access and Modification”.
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “SUBMIT” OR “SEND IT” BUTTONS, OR ACCESSING OR USING THE SERVICES OR BY DOWNLOADING OR POSTING ANY USER FILES FROM OR ON THE SITE OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHETHER OR NOT YOU HAVE REGISTERED AND CREATED AN ACCOUNT WITH YOUSENDIT. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES. If you accept or agree to these Terms of Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
The "File Sync" service, incorporated within the YouSendIt Application, operates by (i) identifying each User File that has been modified by you, someone to whom you have given modification rights, or someone from whom you have accepted a Shared User File (as defined below), via the File Share service (a "Modified User File"), described below, (ii) copying each such modified User File and replacing the version of that User File that resides on the YouSendIt Server with the copy of the Modified User File, and (iii) replacing the version of that User File that resides on any other identified computer or device with the copy of the Modified User File.
The "File Share" service, also incorporated within the YouSendIt Application, operates by effecting your request to make identified User Files or User Files residing within identified folders (each a "Shared User File") available to identified third parties. As to any Shared User File, you may authorize third party rights to (i) view, (ii) view and download, or (iii) view, download and modify. In the event that you authorize third party rights to modify the Shared User File, any modification actually effected by that third party will result in the synchronizing, using the File Sync service, of the versions of that User File resident on the YouSendIt Server and on any other identified computer or device hosting a copy of that User File. To the extent that you grant to any third party the right to download and modify a Shared User File, that third party will be required to agree to YouSendIt’s Terms of Service, and agree to accept access to that Shared User File, as a condition to exercising those rights.
YOU ACKNOWLEDGE AND AGREE THAT BY UTILIZING THE FILE SYNC AND/OR FILE SHARE SERVICES,YOU CONSENT TO (I) THE ACCESS TO ANY COMPUTER OR DEVICE IDENTIFIED BY YOU, AND (II) THE SYNCING, STORAGE AND SHARING OF YOUR USER FILES, AS DESCRIBED ABOVE, BY YOUSENDIT. ACCORDINGLY, YOU HEREBY GRANT TO YOUSENDIT A LICENSE TO (I) USE, COPY, MODIFY, TRANSMIT, DISTRIBUTE, STORE AND CACHE ANY USER FILE THAT YOU CHOOSE TO SYNC AND/OR SHARE, WHETHER THAT USER FILE RESIDES ON YOUR COMPUTER OR DEVICE, YOUSENDIT’S SERVERS OR THE COMPUTER OR DEVICE OF A THIRD PARTY DESIGNATED BY YOU THROUGH THE FILE SYNC SERVICE, AND (II) COPY, TRANSMIT, PUBLISH, AND DISTRIBUTE TO OTHERS THE USER FILES AS YOU DESIGNATE THROUGH THE FILE SHARE SERVICE, IN EACH CASE SOLELY TO PROVIDE THE FILE SYNC SERVICE AND/OR FILE SHARE SERVICE TO YOU.
YOU ACKNOWLEDGE AND AGREE THAT USE OF THE FILE SYNC SERVICE WILL NECESSARILY RESULT IN THE REPLACEMENT OF USER FILES RESIDING ON ANY COMPUTER OR OTHER DEVICE BEING SYNCHRONIZED. YOU SHOULD SAVE AND MAINTAIN A BACKUP COPY OF ANY USER FILE THAT YOU WISH TO RETAIN IN ITS ORIGINAL FORM. You are solely responsible for maintaining and protecting all data and information that is stored, retrieved or otherwise processed by the Site, the Services, any YouSendIt Application, or any User File. Without limiting the foregoing, you will be responsible for all costs and expenses that you or others may incur with respect to backing up, and restoring and/or recreating any data and information that is lost or corrupted as a result of your use of the Site, the Services, any YouSendIt Application, or any User File.
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YouSendIt reserves the right, at its sole discretion, to modify, discontinue or terminate the Services, or to modify these Terms of Service at any time and without prior notice. YouSendIt reserves the right to terminate free accounts at any time, with or without notice. Without limiting the generality of the foregoing, and without further notice, YouSendIt may choose to delete and/or reduce: any or all of your User Files and previous versions and/or prior backups of User Files, if (i) you have not logged into your free account for at least 90 days, (ii) YouSendIt determines, in its sole discretion, that you have violated these Terms of Service, (iii) your YouSendIt account is otherwise terminated by you or YouSendIt, or (iv) YouSendIt discontinues or terminates the Service.
If we modify these Terms of Service, we will post the modification on the Site or within the YouSendIt Application or otherwise provide you with notice of the modification. We will also update the "Last Updated Date" at the top of these Terms of Service. By continuing to access or use the Services after we have posted a modification to these Terms of Service or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms of Service. If the modified Terms of Service are not acceptable to you, your only recourse is to cease using the Services and, if applicable, cancel your Account.
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In order to access and use certain features of the Services, you must register to create a YouSendIt account ("Account") or register by consenting to the creation of such an account for you (e.g., when you access the Services through one of our partner’s platforms). Once you have established an Account, you will be a "Registered User". Only Registered Users that are 18 or older may purchase access to the Select Services as further described below under the Section titled "Payment". By purchasing access to the Select Services you represent and warrant you are 18 or older.
When you register, you will be required to provide certain information, and you will establish a username and password. You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete. YouSendIt will have no liability for failure to deliver notices that result from inaccurate Account information or otherwise. You authorize us, directly or through third parties, to make any inquiries we consider necessary or appropriate to verify your Account information, which may include providing your information to such third parties. YouSendIt reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current, or incomplete.
You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your password, whether or not you have authorized such activities or actions. You will immediately notify YouSendIt of any unauthorized use of your password.
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General. Access to or use of certain Services requires payment of a subscription or access fee (such services the "Select Services"). By selecting a Select Service via your Account or otherwise, you agree to pay all account charges at the prices then in effect in addition to all applicable taxes and other fees that accrue in relation to use of the Select Services by you or other persons (including your agents) using your Account, and you expressly authorize YouSendIt to charge the payment method you provide during registration (or as updated by you thereafter) (your "Payment Method") for the Select Services you have chosen. Except as set forth under "Termination" below, all fees are non-refundable. All fees and applicable taxes, if any, are payable in United States dollars.
For certain premium accounts, YouSendIt may offer the choice of payment via your Payment Method or corporate account invoicing. For accounts setup on an invoice basis, you agree to pay YouSendIt all amounts stated in such invoices within thirty (30) days of receipt. For more information about the Select Services and available payment methods, refer to the Account Features Page located at http://www.yousendit.com/compare-plans.
Recurring Billing. Most subscription plans to the Select Services consist of an initial period, for which there is a one-time charge, followed by recurring periodic charges as agreed to by you (e.g., annual or monthly). By entering into these Terms of Service, you acknowledge that your subscription has an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. We may also periodically authorize your Payment Method in anticipation of subscription fees or related charges.
Auto-renewal. Subscriptions to the Select Services will be automatically extended for successive renewal periods for the same duration as the subscription term originally selected by you, at the then-current, non-promotional subscription rate. You may cancel your subscription at any time. Please see the Section below titled "Termination" for further information.
Change in Amount Authorized. If the amount to be charged to your Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and YouSendIt shall provide, notice of the amount to be charged and the date of the charge at least ten (10) days before the scheduled date of the transaction.
Free Trials. YouSendIt may offer free trial subscriptions during which you may use the Select Services for the time period specified in the promotional offer ("Trial Period"). Free trial subscriptions may not be combined with any other offer and except as may otherwise be provided in the promotional offer, free trial subscriptions are only available to new customers that have not previously been Registered Users. You will not receive a notice from us that your free Trial Period has ended or that the paying portion of your subscription has begun. You may cancel your subscription at any time. Please see the Section below titled "Termination" for further information. Unless you cancel your subscription prior to the conclusion of the Trial Period, your Payment Method will be charged the applicable recurring subscription fee until you cancel your subscription. If you cancel prior to the end of the Trial Period and are inadvertently charged for a subscription, please contact email@example.com to have the charges reversed.
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By You. You may cancel your Account, or change, or cancel your subscription to the Select Services at any time through your Account settings. If you cancel your subscription within three (3) business days after the beginning of the monthly or annual term, your subscription will not be renewed after your then current term expires. For annual subscriptions, if you cancel outside of three (3) business days but within fourteen (14) days of the beginning of the annual term, YouSendIt will convert your Account to a free account and refund to you 90% of the subscription fees paid for the then-current term. If you cancel a monthly subscription more than three (3) business days after the beginning of the monthly term, or you cancel an annual account after the first fourteen (14) days of the term, you won't be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period and YouSendIt will not refund any fees paid by you for that period. Instead, your Account will remain active for the remainder of the term for which you paid and will then be converted to a free account. Your non-termination or continued use of the Select Services reaffirms that YouSendIt is authorized to charge your Payment Method. YouSendIt may submit those charges for payment and you will be responsible for such charges. This does not waive YouSendIt's right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially subscribed to the Select Services.
By Us. YouSendIt reserves the right to discontinue the Services or to change the Services at any time and without prior notice to you, except that YouSendIt will provide notice of such discontinuation to corporate account holders. In the event of such discontinuation by YouSendIt, YouSendIt will refund any fees paid by you, prorated proportionally to the amount of time remaining in the then-current subscription period. For monthly subscriptions, that period is one month, and for annual subscriptions, that period is one year.
If you breach any of these Terms of Service, YouSendIt will have the right to suspend or disable your Account, or terminate these Terms of Service immediately at its sole discretion and without prior notice to you. In the event of your breach of these Terms of Service, YouSendIt will not be required to refund any fees paid by you and you will remain liable for all amounts due hereunder.
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When you place a User File in your shared folder, that User File becomes available to those users to whom you grant access. When you place a User File in your public folder, that User File is automatically available to other YouSendIt users and to the general public. By placing a User File in your public folder, you hereby grant to all other YouSendIt users and the public a non-exclusive, non-commercial, worldwide, royalty-free, sublicensable, perpetual and irrevocable right and license to use and exploit that User File. You should not place any User File in your public folder unless you want members of the general public to be able to use that User File. By placing a User File in your shared folder or your public folder, you agree and acknowledge that YouSendIt has no responsibility or obligation to monitor or notify you of any non-compliance related to the license you have granted hereunder, or any rights or licenses you may choose to grant to other users under separate agreements, if any, and that YouSendIt has no obligation to enforce or police, or aid you in enforcing or policing, the terms of the license(s) or permission(s) you have chosen to grant.
In order to allow the highest traffic levels compatible with the overall performance of the Services, YouSendIt may set bandwidth quotas for public and/or shared folders. Your account may be suspended and access to any shared or public folder denied or restricted, without notice and in YouSendIt's sole discretion, in the event that traffic to or from your shared or public folders exceeds the bandwidth limits. The parameters of the quotas may be changed without prior notice in order to ensure proper functioning of the Services for the greater YouSendIt user community.
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As used herein "User Files" means the content, files and folders (including any information or data therein) users may access, store, send, receive, edit, sync, share, or otherwise organize or manage, and to which users may append electronic signatures, via use of the Services, including User Content; and "User Content" means the text, information or other content posted or submitted by users on the Site.
YouSendIt does not claim any ownership rights in any User Files that you make available through the Services. However, by making User Files available through the Services, you grant YouSendIt the nonexclusive, worldwide, transferable right, on a royalty-free basis, with a right to sublicense this right only to third parties assisting YouSendIt in providing the Services to use, copy, distribute and process User Files through the Services on your behalf and on behalf of your customers for the purposes of providing you with the Services and administering your requests, including without limitation, facilitating the secure storage, transfer, and delivery of such User Files.
You represent and warrant that you own or have the necessary licenses, rights, consents and permissions to grant the licenses that both your public and shared folders require, as described above. Please note that moving User Files from your public folders does not revoke the license granted to those individuals who previously accessed those files.
User Files may be protected by intellectual property rights which are owned by the YouSendIt user making that User File available via a shared or public folder. You may not modify, rent, lease, loan, sell, distribute or create derivative works based on the content(s) (either in whole or in part) of another user's shared folder unless you have been specifically authorized to do so in a separate agreement with the rightful owner of that User File.
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You acknowledge and agree that YouSendIt may establish revised practices and policies concerning access to and use of the Services, including without limitation, the maximum size of the User Files that a user may access and use via the Services as contemplated herein, the maximum number of days that User Files will be stored by the Services, the maximum number of times a user may access the Services in a given period of time, and the maximum number of recipients to which a user may send a User File.
You acknowledge and agree that YouSendIt will not be responsible for any failure of the Services to store User Files, for the deletion of User Files stored on the Services, or for the corruption of or loss of any data, information or content contained in User Files. You have sole responsibility for all User Files that you upload, store, access and transmit via the Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Files that you make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant YouSendIt the rights in such User Files, as contemplated under these Terms of Service; and (ii) neither the User Files nor your uploading, storing, accessing or transmittal of the User Files, or YouSendIt's use of the User Files on, through or by means of the Services, will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
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You will not use the Services to transmit, route, or provide connections to, or store any material that infringes any copyrights or otherwise violates or promotes the violation of the intellectual property rights of any third party. YouSendIt has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be infringing the rights of copyright holders. Please see the YouSendIt Copyright Policy for further information.
YouSendIt reserves the right, in its sole discretion, at any time and without prior notice, to remove or disable access to any User Files that it believes to be in violation of these Terms of Service or otherwise harmful to the Services.
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As used herein, "YouSendIt Content" means all text, graphics, images, audio, video, information or other materials made available by YouSendIt through the Services, not including any User Files. As between you and YouSendIt, all right, title, and interest in and to the Services and YouSendIt Content is and will remain the exclusive property of YouSendIt and its licensors, even if YouSendIt incorporates any Feedback into subsequent versions of the Services or otherwise uses such Feedback. The Services and YouSendIt Content are protected by copyright, trademark, and other laws of both the United States and foreign countries. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or YouSendIt Content. Except as expressly permitted in these Terms of Service, you may not reproduce, modify, or prepare derivative works based upon, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise exploit the Services or YouSendIt Content. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by YouSendIt or its licensors, except for the licenses and rights expressly granted in these Terms of Service.
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YouSendIt, the YouSendIt logo, and all other YouSendIt trademarks, service marks, product names, and trade names of YouSendIt appearing on the Services are owned by YouSendIt. All other trademarks, service marks, product names, and logos appearing on the Services are the property of their respective owners. You may not use or display any trademark, service mark, product name, trade name, or logo appearing on the Services without the owner's prior written consent.
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As a condition to your use of the Services, you agree not to:
YouSendIt will have the right to investigate and prosecute violations of any of the above, including without limitation, possible infringement of any intellectual property rights and possible security breaches to the fullest extent of the law. YouSendIt may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that, although YouSendIt has no obligation to monitor your access to or use of the Services, it has the right to do so for the purposes of operating the Services, to ensure your compliance with these Terms of Service, or to comply with applicable law, or the order or other requirement of a court, administrative agency, or other governmental body.
YouSendIt reserves the right at all times to disclose, in its sole discretion, any User Files as necessary to (a) satisfy any law, regulation, or governmental request, or (b) reduce or prevent what YouSendIt considers to be, in its sole discretion, a serious or imminent threat to your health or safety, or the health or safety of another. In appropriate circumstances, YouSendIt may in its discretion terminate the accounts and/or delete the User Files of users who are, or are believed to be or are charged with, infringing or violating the intellectual property rights of third parties, any applicable law or regulation, or otherwise in violation of the General Prohibitions listed above.
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License Grant. Subject to your compliance with the terms and conditions of these Terms of Service, YouSendIt grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to download and install a copy of each YouSendIt Application onto one or more mobile devices or computers that you own or control and run such copies of the YouSendIt Application solely for your own personal use (which personal use may include sharing User Files with third parties who have also accepted these Terms of Service, including the license terms set forth herein). YouSendIt reserves all rights in each YouSendIt Application not expressly granted to you in these Terms of Service.
Restrictions. Except as expressly specified in these Terms of Service, you may not: (i) copy, modify or distribute any YouSendIt Application for any purpose; (ii) transfer, sublicense, lease, lend, rent or otherwise distribute any YouSendIt Application to any third party; (iii) decompile, reverse-engineer, disassemble, or create derivative works of any YouSendIt Application; (iv) make the functionality of any YouSendIt Application available to multiple users through any means; or (v) use any YouSendIt Application in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms of Service.
Updates and Upgrades; No Obligation. YouSendIt is not obligated to maintain or support any YouSendIt Application, or to provide you with updates, upgrades or services related thereto. You acknowledge that YouSendIt may from time to time in its sole discretion issue updates or upgrades to any YouSendIt Application, and may automatically update or upgrade the version of any YouSendIt Application that you are using on your mobile device or computer. You consent to such automatic updating or upgrading, and agree that the terms and conditions of these Terms of Service will apply to all such updates or upgrades.
Term and Termination. The license to each YouSendIt Application granted under these Terms of Service remains in effect for a period of 75 years, unless earlier terminated by you or YouSendIt in accordance with this provision. You may terminate the license at any time by destroying all copies of the YouSendIt Application in your possession or control. Without limiting any other terms of these Terms of Service, the license will automatically terminate without notice from YouSendIt if you breach any terms of these Terms of Service. Upon any termination of these Terms of Service, you must cease all use of the YouSendIt Application and promptly delete and destroy all copies, full or partial, of the YouSendIt Application.
Third Party Code. The YouSendIt Application is distributed with certain independent code that is licensed under open source licenses ("Open Source Code") and the Open Source Code is licensed to you in accordance with the applicable open source licenses, which may in part be found at: http://www.yousendit.com/aboutus/legal/terms-of-service-open-source. To the extent that any of the terms and conditions of these Terms of Service conflict with any such open source licenses, the conflicting terms and conditions will not apply to the corresponding Open Source Code.
Proprietary Rights. The copy of each YouSendIt Application is licensed, not sold, to you. You agree that YouSendIt and its licensors own all right, title and interest in and to the YouSendIt Application, including all intellectual property rights therein, and that YouSendIt retains ownership of all copies of the YouSendIt Applications even after installation on your mobile device or computer. Each YouSendIt Application is protected by United States copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the YouSendIt Application as delivered to you.
U.S. Government End Users. Each YouSendIt Application and related documentation are "commercial items" as that term is defined in FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation," respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If a YouSendIt Application and related documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government's rights in the YouSendIt Application and related documentation will be only those specified in these Terms of Service.
Export Control. You may not use, export, re-export, import, or transfer any YouSendIt Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the YouSendIt Application, and any other applicable laws. In particular, but without limitation, the YouSendIt Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals, or the U.S. Department of Commerce's Denied Person's List or Entity List. Furthermore, by using the YouSendIt Application you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
YouSendIt Application from Apple App Store. Additional terms apply to any YouSendIt Application accessed through or downloaded from the Apple App Store. Those terms may be found at: http://www.yousendit.com/aboutus/legal/terms-of-service-apple.
If you elect to provide us with feedback, comments and suggestions for improvements to the Services (whether written, verbal or in any other format or manner) ("Feedback") we will be free to use and exploit the same in any manner without restriction of any kind and without any need to compensate you. You acknowledge and agree that all Feedback will be the sole and exclusive property of YouSendIt and that you hereby irrevocably assign to YouSendIt, and agree to irrevocably assign to YouSendIt all of your right, title, and interest in and to all Feedback, including, without limitation, all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At YouSendIt's request and expense, you will execute documents and take such further acts as YouSendIt may reasonably requests to assist YouSendIt in acquiring, perfecting, and maintaining its intellectual property rights and other legal protections for the Feedback.
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The Services may contain links to third party websites. You acknowledge and agree that YouSendIt is not responsible or liable for: (i) the availability or accuracy of such websites; or (ii) the content, products, or services on, or available from, such websites. Links to such websites do not imply any endorsement by YouSendIt of such websites or the content, products, or services available from such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites.
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YouSendIt performs system maintenance on a regular basis to ensure high-quality of service. YouSendIt uses commercially reasonable efforts to ensure that the Services are available for use during this time. YouSendIt will use reasonable efforts to perform all maintenance during its pre-scheduled maintenance windows. Currently, the maintenance window is between 10:00 p.m. Friday and 2:00 a.m. Saturday, U.S. Pacific Standard Time (06:00-10:00 GMT).
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THE SERVICES, YOUSENDIT APPLICATIONS, AND YOUSENDIT CONTENT ARE PROVIDED "AS-IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, YOUSENDIT EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
YOUSENDIT MAKES NO WARRANTY THAT THE SERVICES, THE YOUSENDIT APPLICATIONS OR YOUSENDIT CONTENT WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS, OR WILL OPERATE AT ANY PARTICULAR SPEED. YOUR USE OF THE SERVICES, YOUSENDIT APPLICATIONS AND YOUSENDIT CONTENT IS AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT YOUSENDIT WILL NOT BE RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR THE COMPUTER SYSTEM OF ANY THIRD PARTY RESULTING FROM USE OF THE SERVICES, YOUSENDIT CONTENT OR ANY YOUSENDIT APPLICATION.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM YOUSENDIT OR THROUGH SERVICES, R YOUSENDIT CONTENT OR ANY YOUSENDIT APPLICATION, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
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You will defend, indemnify, and hold harmless YouSendIt, its officers, directors, affiliates, employees and agents, from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of, or in any way connected with, your access to or use of the Services, any YouSendIt Application, or your violation of these Terms of Service, including, without limitation, third party claims that User Files submitted to the Services by you infringe or misappropriate the intellectual property rights, privacy rights, publicity rights, or moral rights of a third party.
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IN NO EVENT WILL YOUSENDIT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS, AND DAMAGE TO HARDWARE OR OTHER SOFTWARE) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, THE USE OR PERFORMANCE OF ANY YOUSENDIT APPLICATION, OR FROM THE USE OF, OR INABILITY TO USE THE SERVICES OR ANY USER FILES SENT THROUGH, STORED BY, OR DOWNLOADED FROM THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT YOUSENDIT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF ANY LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL YOUSENDIT'S AGGREGATE LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES EXCEED THE LESSER OF (A) ONE HUNDRED U.S. DOLLARS ($100); AND (B) THE FEES PAID TO YOUSENDIT BY YOU IN THE TWELVE (12) MONTHS LEADING UP TO THE EVENT GIVING RISE TO SUCH A CLAIM.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOUSENDIT AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
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These Terms of Service will be governed by the laws of the State of California without regard to its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods will not apply. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms of Service will be the state and federal courts located in Santa Clara County, California, and you waive any objection to jurisdiction and venue in such courts.
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These Terms of Service represent the entire and exclusive agreement between YouSendIt and you regarding the Services, the YouSendIt Applications and these Terms of Service supersede and replace any prior agreements between YouSendIt and you regarding the Services and YouSendIt Content. Certain areas of the Site (and your access to or use of certain Services or YouSendIt Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms of Service and terms and conditions posted for a specific area of the Services or YouSendIt Content, the latter terms and conditions shall take precedence with respect to your use of or access to that area of the Services or YouSendIt Content.
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You consent to the use of: (i) electronic means to complete these Terms of Service and to deliver any notices or other communications permitted or required hereunder (including notices with respect to actual or alleged breaches of security); and (ii) electronic records to store information related to these Terms of Service or your use of the Services. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms of Service, will be in writing and given: (a) by YouSendIt via email (in each case to the address that you provide); or (b) by posting to the Site or through the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
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You will not assign any rights granted to you or delegate any of your duties hereunder. Any attempt to do so is void and of no effect. YouSendIt may freely assign these Terms of Service and the rights granted hereunder without restriction. Nothing in these Terms of Service shall constitute a partnership or joint venture between you and YouSendIt. In the event that any provision of these Terms of Service is held to be invalid or unenforceable, the remaining provisions of these Terms of Service will remain in full force and effect. The failure of YouSendIt to enforce any right or provision of these Terms of Service will not be deemed a waiver of such right or provision. The headings and captions are for convenience only and are not to be used in the interpretation of these Terms of Service.
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