These Terms of Service along with any other terms and policies referenced herein, and are incorporated herein by reference and form an integral part hereof, as amended from time to time (these “Terms”) constitute a legally binding agreement between Filedriver.com, (“Filedriver.com”, “us”, “we” or “our”) and you, either individually, or on behalf of your employer or any other entity which you represent (referred to herein “you” or “your”), governing your access to, and the use of filedriver.com and any related website (the “Sites”), and the use of, and registration with, Filedriver.com’s Service (defined below) through the Sites or through any other means.
In case you represent your employer or another entity, you hereby represent that you have full legal authority to bind your employer or such entity and you agree to these Terms on behalf of your employer or the respective entity, and these Terms shall bind your employer or such entity.
You acknowledge and agree that, by accessing or using the Service or Site, or posting any Content or other data from or on the Site or through the Service, you are indicating that you have read, understand and agree to be bound by these Terms.
IF YOU DO NOT AGREE TO COMPLY WITH, AND BE BOUND BY, THESE TERMS OR DO NOT HAVE AUTHORITY TO BIND YOUR EMPLOYER OR ANY OTHER ENTITY, PLEASE DO NOT ACCEPT THESE TERMS OR ACCESS OR USE THE SERVICE OR THE SITES.
- Our Service.
- Our Service. Filedriver.com is a cloud-based service that provides you with the infrastructure to share Content (as defined below) and other data with others and/or yourself over the Filedriver.com’s platform (the “Service”).
- Modification or Discontinuation of the Service. We may add, modify or discontinue any feature, functionality or any other tool, within the Service and/or Sites, at our own discretion and without further notice, however, if we make any material adverse change in the core functionality of the Service, then we will notify you by posting an announcement on the Sites and/or via the Service or by sending you an email.
- No Contingency on Future Releases and Improvements. You hereby acknowledge that your use of the Service and/or Third Party Services (as defined below) hereunder are not contingent on the delivery by us of any future release of any functionality or feature, including without limitation, the continuance of: (i) a certain Service; or (ii) Third Party Services, or dependent on any public comments we make, orally or in writing, regarding any future functionality or feature.
- Ability to Accept Terms. If you access and use the Sites and/or the Service you represent and warrant that you are at least 16 years old. The Sites and/or Service are only intended for individuals aged sixteen (16) years or older. We reserve the right to request proof of age at any stage so that we can verify compliance with this paragraph.
- Your Content.
- Content. Content is any data, information, file attachments, text, images, graphics, video, presentation decks, reports, messages, personal information, or any other content, including third party content, that is uploaded, submitted, transmitted, shared, or otherwise made available to or through the Service (the “Content”). For the avoidance of doubt, Anonymous Information (as defined below) is not regarded as Content. You retain all right, title and interest in and to the Content. Subject to these Terms, you grant us a worldwide, royalty-free, limited license to access, use, process, store, transfer, host, distribute, export, and display the Content. The afore-mentioned license is hereby granted solely: (i) to maintain and provide you the Service; (ii) to prevent or address technical or security issues and resolve support requests; (iii) to investigate when we have a good faith belief, or have received a complaint alleging, that such Content is in violation of these Terms; (iv) to comply with a valid legal subpoena, request, or other lawful process; and (v) as expressly permitted in writing by you.
- Responsibility for Content Compliance. You represent and warrant that: (i) you have or have obtained all rights, licenses, consents, permissions, power and/or authority, necessary to grant the rights granted herein, for any Content that you submit, post or display on or through the Service; (ii) the Content you submit, your use of such Content, and our use of such Content, as set forth in these Terms, do not and shall not (a) infringe or violate any third party’s intellectual property or other rights, including any patents, copyrights, trademarks, trade secret or other intellectual property, proprietary or privacy, data protection or publicity rights of any third party; (b) exploit or abuse children, including but not limited to images or depictions of child abuse or sexual abuse, or that present children in a sexual manner; (c) is deceptive, fraudulent, obscene, defamatory, libelous, threatening, harmful, pornographic, indecent, harassing, hateful, or otherwise encouraging any illegal, tortious or inappropriate conduct; (d) violate any applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer and exportation (the “Laws”); (e) attacks or otherwise unlawfully relate to others based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability, or medical condition; or (f) violate any of your or third party’s policies and terms governing the Content.
We assume no responsibility or liability for your Content, and you shall be solely responsible for your Content and the consequences of using, disclosing, storing, or transmitting it through the Service. It is hereby clariﬁed that Filedriver.com shall not be responsible to any failure of the Service to store, transfer or delete the Content or for the corruption or loss of any Content or other data, information or content contained in the Content and shall not be responsible to monitor and/or moderate the Content and there shall be no claim against Filedriver.com of not acting so.
- No Sensitive Data. You shall not submit to the Service any data that is protected under a special legislation and requires a unique treatment, including, without limitations, (i) categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any similar legislation or regulation in other jurisdiction; (ii) any protected health information subject to the Health Insurance Portability and Accountability Act, as amended and supplemented, or any similar legislation in other jurisdiction; and (iii) credit, debit or other payment card data subject to PCI DSS or any other credit card schemes.
- Public User Submissions.
- Public User Submissions. The Sites may have certain features that allow you to submit comments, information, and other materials publicly (collectively, “Public User Submissions”) and share such Public User Submissions with other users, or the public. By submitting Public User Submissions through the Sites, you grant us a license to access, use, copy, reproduce, process, adapt, publish, transmit, host, and display that Public User Submissions for any purpose, business, including without limitation, for publicizing and promoting Filedriver.com, the Service and/or the Sites and for any other lawful purpose, in any media format (e.g. in-print, websites. electronically, broadcast), and you hereby waive, or to the extent legally prohibited, assign to Filedriver.com, any moral rights in your Public User Submissions.
- Responsibility for Public User Submissions. You acknowledge and agree that: (i) you have or have obtained all rights, licenses, consents, permissions, power and/or authority, necessary to grant the rights granted herein, for any Public User Submissions that you submit, post or display on or through the Service; (ii) we do not control, and are not responsible for, other content and/or submissions, posted on our Sites and/or Service by others; (iii) by using the Service and/or Sites, you may be exposed to content and/or submissions by other users or site visitors that is offensive, indecent, inaccurate, misleading, or otherwise unlawful; (iv) any Public User Submissions are submitted in accordance with, and subject to these Terms.
- Intellectual Property Rights; License.
- Our Intellectual Property. The Service and Sites, inclusive of materials, such as software, application programming interface, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks, any and all related or underlying technology and any modifications, enhancements or derivative works of the foregoing (collectively, “Filedriver.com Materials”), are the property of Filedriver.com and its licensors, and may be protected by applicable copyright or other intellectual property laws and treaties. As between you and Fledriver.com, Filedriver.com retains all right, title and interest, including all intellectual property rights, in and to the Filedriver.com Materials.
- Your Access and Use Rights. Subject to the terms and conditions of these Terms, and your compliance thereof, and specifically in strict compliance with our Use Restrictions (as set forth in Section 4.3 below), we grant you a limited, worldwide, non-exclusive, non-transferable right to access and use the Service and Sites solely for your internal purposes.
- Use Restrictions. Except as expressly permitted in these Terms, you may not, and shall not allow any third party to: (a) give, sell, rent, lease, timeshare, sublicense, disclose, publish, assign, market, resell, display, transmit, broadcast, transfer or distribute any portion of the Service or the Sites to any third party, including, but not limited to your affiliates, or use the Service in any service bureau arrangement; (b) circumvent, disable or otherwise interfere with security-related features of the Sites or Service or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Service or Sites; (c) reverse engineer, decompile or disassemble, decrypt or, attempt to derive the source code of, the Service or Sites, or any components thereof; (d) copy, modify, translate, patch, improve, alter, change or create any derivative works of the Service or Sites, or any part thereof; (e) attempt to gain unauthorized access to the Service or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Service; (f) access (or attempt to access), tamper with, or search any portion of the Service and/or its underlying system, network and technology, by any means other than through the interface that is provided by us in connection with the Service (e.g. scraping, spidering or crawling), unless you have been specifically allowed to do so in a separate binding agreement with us; (g) attempt to disrupt or overwhelm our infrastructure by imposing unreasonable requests or burdens on our resources (e.g. using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time); (h) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure; (i) upload to, or transmit from, the Service any data (including through Content and/or Public User Submissions), file, software, or link that contains, or redirects to, a virus, Trojan horse, worm, scripting exploits, bots or other harmful component or a technology that may or is intended to damage or hijack the operation of any hardware, software (including the Service), or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (j) misuse or otherwise use the Service in an excessive manner compared to the anticipated standard use (examined, at our sole discretion), including without limitation, consuming a massive amount of storage or excessive use of bandwidth; (k) use the Service to transmit malware or host phishing pages. You may not perform activities or upload or distribute materials or content that harm or disrupt the operation of the Service or other infrastructure of Filedriver.com or others, including Third Party Services; (l) take any action that imposes or may impose (at Filedriver.com's sole discretion) an unreasonable or disproportionately large load on the Filedriver.com infrastructure or infrastructure which supports the Sites or Service; (m) interfere or attempt to interfere with the integrity or proper working of the Service or Sites, or any related activities; (n) remove, deface, obscure, or alter Filedriver.com's or any third party's identification, attribution or copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Service or Sites, or use or display logos of the Service or Sites without Filedriver.com’s prior written approval; (o) use the Service or Sites for competitive purposes, including to develop or enhance a competing service or product; (p) use the Service to violate the privacy of others, including posting private and confidential information of others, without their express permission; or (q) encourage or assist any third party to do any of the foregoing.
- Feedback. As a user of the Service and/or Sites, you may provide suggestions, comments, feature requests or other feedback to any of Filedriver.com Materials, the Service, and/or the Sites (“Feedback”). Such Feedback is deemed an integral part of Filedriver.com Materials, and as such, it is the sole property of Filedriver.com without restrictions or limitations on use of any kind. Filedriver.com may either implement or reject such Feedback, without any restriction or obligation of any kind. You (i) represent and warrant that such Feedback is accurate, complete, and does not infringe on any third party rights; (ii) irrevocably assign to Filedriver.com any right, title and interest you may have in such Feedback; and (iii) explicitly and irrevocably waive any and all claims relating to any past, present or future moral rights, artists’ rights, or any other similar rights, worldwide, in or to such Feedback.
- Anonymous Information. Notwithstanding any other provision of these Terms, we may collect, use and publish Anonymous Information (defined below) relating to your use of the Service and/or Sites, and disclose it for the purpose of providing, improving and publicizing our products and services, including the Sites and Service, and for other business purposes. “Anonymous Information” means information which does not enable identification of an individual, such as aggregated and analytics information. Filedriver.com owns all Anonymous Information collected or obtained by Filedriver.com.
- Third Party Services; Links.
- Third Party Services. The Service may enable you to engage and procure certain third party services, products, apps and tools in connection with the Service (collectively, “Third Party Services”). You acknowledge and agree that regardless of the manner in which such Third Party Services may be offered to you, we merely act as an intermediary platform between you and such Third Party Services, and we do not, in any way, endorse any such Third Party Services, or shall be in any way responsible or liable with respect to any such Third Party Services. Your relationship with such Third Party Services and any terms governing your payment for, and use of, such Third Party Services, including without limitation, the collection, processing and use of your data by such Third Party Services, including your Content, are subject to a separate contractual arrangement between you and the provider of a Third Party Service (the “Third Party Agreement”). We are not a party to, or responsible, in any manner, for the compliance by you or by the provider of the Third Party Service with the Third Party Agreement. Each of Filedriver.com and the Third Party Service reserves the right to discontinue the use or suspend the availability of any Third Party Service, for any reason and with no obligation to provide any explanation or notice.
- Limitations of Liability. FILEDRIVER.COM BEARS NO RESPONSIBILITY AND/OR LIABILITY FOR ANY LINKS OR THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION, SUCH THIRD PARTY SERVICE’S OPERABILITY OR INTEROPERABILITY WITH OUR SERVICE, SECURITY, ACCURACY, RELIABILITY, DATA PROTECTION AND PROCESSING PRACTICES AND THE QUALITY OF ITS OFFERINGS, AS WELL AS ANY ACTS OR OMMISSIONS BY THIRD PARTIES. BY ACCESSING AND/OR USING THE THIRD PARTY SERVICES, YOU ACKNOWLEDGE THAT YOUR ACCESS AND USE OF THE THIRD PARTY SERVICES ARE AT YOUR SOLE DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ENSURING SUCH THIRD PARTY SERVICE’S OPERATION AND PRACTICES AND ITS RESPECTIVE THIRD PARTY AGREEMENT, MEET YOUR NEEDS.
- Pre-Released Services.
- Trial Service. We may offer, from time to time, part or all of our Services on a free, no-obligation trial version (“Trial Service”). The term of the Trial Service shall be as communicated to you, unless terminated earlier by either you or us, for any reason or for no reason. We reserve the right to modify, cancel and/or limit this Trial Service at any time and without liability or explanation to you.
- Pre-Released Services. Note that we may offer, from time to time, certain Services in an Alpha or Beta versions (the “Pre-Released Services”) and we use best endeavors to identify such Pre-Released Services as such. Pre-Released Services are Services that are still under development, and as such they may be inoperable or incomplete, and may contain bugs, suffer disruptions and/or not operate as intended and designated, more than usual.
- Governing Terms of Trial Service and Pre-Released Services. The Trial Service and Pre-Released Services are governed by these Terms, provided that notwithstanding anything in these Terms or elsewhere to the contrary, in respect of Trial Service and Pre-Released Services such services are licensed hereunder on as “As-Is”, “With All Faults” “As Available” basis, with no warranties, express or implied, of any kind; and (ii) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF FILEDRIVER.COM, ITS AFFILIATES OR ITS THIRD PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS (INCLUDING THE SITES, THE SERVICE AND THE THIRD PARTY SERVICES), EXCEED US$100. We make no promises that any Trial Service and/or Pre-Released Services will be made available to you and/or generally available.
- Term and Termination.
- Term. These Terms are in full force and effect until the end of your use of the Service, either paid or unpaid, unless terminated otherwise in accordance with these Terms.
- Survival. Section 2 (Content), 5 (Privacy), 6 (Third Party Services), 7.3 (Governing Terms of Trial Services and Pre-Released Services), 8 (Term and Termination), 9 (Monitoring; Suspension; Excessive Usage), 10 (Confidentiality), 11 (Warranty Disclaimer), 12 (Limitations of Liability), 14 (Indemnification), 19 (Governing Law and Jurisdiction; Class Action Waiver and Arbitration) and 20 (General Provisions), shall survive the termination or expiration of these Terms, and continue to be in force and effect in accordance with their applicable terms.
- Monitoring; Suspension; Excessive Usage.
- Monitoring. We are under no obligation to monitor your activities of the Services. However, we may systematically screen and/or monitor any data, Content or information uploaded and/or transmitted into our Service and Sites, at any time and for any reason, for compliance with these Terms, with or without notice. You acknowledge that it is our policy to respect the legitimate rights of copyright and other intellectual property owners, and we will respond to notices of alleged copyright infringement in accordance with our Copyright and Content Policy.
- Suspension. We may decide to temporarily suspend your access to the Service and/or remove any violating Content or Public User Submission, in whole or in part, with or without notice, in the following events: (i) we believe, at our sole discretion, that the Content, Public User Submission or any of the activities or the use of the Service by you or by any third party, may impose a security risk, may cause harm to us or any third party, and/or may raise any liability for us or any third party; or (ii) we believe, at our sole discretion, that the Content, Public User Submission or any of the activities or the use of the Service by you or any third party, are in violation of these Terms or applicable Law. The afore-mentioned suspension rights are in addition to any remedies that may be available to us in accordance with these Terms and/or applicable Law.
- Excessive Usage. We shall have the right, including without limitation where we, at our sole discretion, believe that you have misused the Service or otherwise used the Service in an excessive manner compared to the anticipated standard use (at our sole discretion), to impose additional restrictions as for the upload, storage, download and use of the Service, including, without limitation, restrictions on Third Party Services, network traffic and bandwidth, size and/or length of content, quality and/or format of content, sources of content, volume of download time, etc.
- Confidential Information. In connection with these Terms and the Service (including the evaluation thereof), each party (“Disclosing Party”) may disclose to the other party (“Receiving Party”), non-public business, product, technology and marketing information, including without limitation, customers lists and information, know-how, software and any other non-public information that is either identified as such or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure (the “Confidential Information”). For the avoidance of doubt, (i) your Content is regarded as your Confidential Information, and (ii) our Site, Service, Trial Service and/or Pre-Released Services, inclusive of their underlying technology, and their respective performance information, as well as any data, reports and materials we provided to you in connection with your evaluation or use of the Service, are regarded as our Confidential Information. Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without any use or reference to the Confidential Information.
- Confidentiality Undertakings by the Receiving Party. The Receiving Party will (i) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates, service providers and agents, on a need to know basis and who are bound by confidentiality obligations at least as restrictive as those contained herein; and (ii) not use or disclose any Confidential Information to any third party, except as part of its performance under these Terms and as required to be disclosed to legal or financial advisors to the Receiving Party or in connection with a due diligence process that the Receiving Party is undergoing, provided that any such disclosure shall be governed by confidentiality obligations at least as restrictive as those contained herein.
- Compelled Disclosure. Notwithstanding the above, Confidential Information may be disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body; provided, however, that to the extent legally permissible, the Receiving Party shall make best efforts to provide prompt written notice of such court order or requirement to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
- Warranty Disclaimer.
NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
- EXCEPT AS EXPRESSLY SET FORTH HEREIN, The Sites and the Service are provided on an "as is", “with all faults” and "as available" basis, and without warranties of any kind. WE AND our AFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS (INCLUDING, THE THIRD PARTY SERVICE PROVIDERS, HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, WARRANTIES AND/OR REPRESENTATIONS OF MERCHANTABILITY, FUNCTIONALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY.
- WE AND OUR VENDORS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION THAT THE SERVICE AND SITES, INCLUDING THE ACCESS THERETO AND USE THEREOF, WILL BE UNINTERRUPTED, TIMELY, SECURED, ERROR FREE, THAT DATA WON’T BE LOST, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITES AND/OR SERVICE ARE FREE FROM VIRUSES OR OTHER HARMFUL CODE. WE AND OUR VENDORS FURTHER DISCLAIM ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DELAYS, FAILURES, INTERCEPTION, ALTERATION, LOSS, OR OTHER DAMAGES THAT YOU AND/OR YOUR DATA (INCLUDING CONTENT) MAY SUFFER, THAT ARE BEYOND OUR CONTROL.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN, WE DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION (I) THAT OUR SERVICE (OR ANY PORTION THEREOF) IS COMPLETE, ACCURATE, OF ANY CERTAIN QUALITY, RELIABLE, SUITABLE FOR, OR COMPATIBLE WITH, ANY OF YOUR CONTEMPLATED ACTIVITIES, DEVICES, OPERATING SYSTEMS, BROWSERS, SOFTWARE OR TOOLS (OR THAT IT WILL REMAIN AS SUCH AT ANY TIME), OR COMPLY WITH ANY LAWS APPLICABLE TO YOU; AND/OR (II) REGARDING ANY CONTENT, INFORMATION, REPORTS OR RESULTS THAT YOU OBTAIN THROUGH THE SERVICE AND/OR THE SITES.
- IN NO EVENT SHALL FILEDRIVER.COM BE RESPONSIBLE FOR ANY FAILURE OF THE SERVICE TO STORE YOUR CONTENT, SEND EMAIL NOTIFICATION BEFORE DELETING YOUR CONTENT, FOR THE DELETION OF CONTENT STORED ON THE SERVICE OR FOR THE CORRUPTION OF OR LOSS OF ANY DATA OR INFORMTION CONTAINED IN YOUR CONTENT. YOU HAVE SOLE RESPONSIBILITY FOR ALL CONTENT THAT YOU UPLOAD, STORE, ACCESS AND TRANSMIT VIA THE SERVICE. YOU ARE SOLELY RESPONSIBLE TO MAINTAIN AND PROTECT ALL DATA AND INFORMATION THAT IS STORED, RETIEVED OR OTHEWISE PROCESSED BY THE SITE AND SERVICE. WITHOUT LIMITING THE FOREGOING YOU WILL BE RESPONSIBLE FOE ALL COSTS AND EXPENSES THAT YOU OR OTHERS MAY INCURE WITH RESPECT TO THE BACKING UP AND RESTORING AND/OR RECREATING ANY CONENT, DATA AND INFORMATION THAT IS LOST OR CORUPTED AS A RESULT OF YOUR USE OF THE SITE OR SERVICE.
- Limitation of Liability.
NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
- IN NO EVENT SHALL EITHER PARTY HERETO AND ITS AFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS (INCLUDING, THE THIRD PARTY SERVICE PROVIDERS), BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH THESE TERMS FOR (I) ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES; (II) ANY LOSS OF PROFITS, COSTS, ANTICIPATED SAVINGS; (III) ANY LOSS OF, OR DAMAGE TO DATA, USE, BUSINESS, REPUTATION, REVENUE OR GOODWILL; AND/OR (IV) THE FAILURE OF SECURITY MEASURES AND PROTECTIONS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- EXCEPT FOR YOUT INDEMNITY OBLIGATIONS UNDER SECTION 14 HEREIN (INDEMNIFICATION), YOUR PAYMENT OBLIGATIONS HEREUNDER (IF APPLICABLE) OR YOUR BREACH OF OUR USE RESTRICTIONS (SECTION 4.3), IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY, ITS AFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS (INCLUDING, THE ITS THIRD-PARTY SERVICE PROVIDERS), UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS (INCLUDING THE SITES AND THE SERVICE), EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU (IF ANY) DURING THE 12 CONSECUTIVE MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
- Specific Laws; Reasonable Allocation of Risks.
- Specific Laws. Except as expressly stated in these Terms, we make no representations or warranties that your use of the Service is appropriate in your jurisdiction. Other than as indicated herein, you are responsible for your compliance with any local and/or specific applicable Laws, as applicable to your use of the Service.
- Reasonable Allocation of Risks. You hereby acknowledge and confirm that the limitations of liability and warranty disclaimers contained in these Terms are agreed upon by you and us and we both find such limitations and allocation of risks to be commercially reasonable and suitable for our engagement hereunder, and both you and us have relied on these limitations and risk allocation in determining whether to enter these Terms.
- You hereby agrees to indemnify, defend and hold harmless Filedriver.com and its affiliates, officers, directors, employees and agents from and against any and all claims, damages, obligations, liabilities, losses, reasonable expenses or costs (collectively, “Losses”) incurred as a result of any third party claim arising from (i) your violation of these Terms or applicable Law; and/or (ii) the Content, including the use of the Content by Filedriver.com and/or any of its subcontractors, infringes or violates, any third party’s rights, including, without limitation, intellectual property, privacy and/or publicity rights.
- Third Party Components within Our Service.
Our Service includes third party codes and libraries that are subject to third party open source license terms (the “Open Source Code” and the “Open Source Terms”, respectively). Some of such Open Source Terms determine that to the extent applicable to the respective Open Source Code licensed thereunder, such terms prevail over any conflicting license terms, including these Terms. We use our best endeavors to identify such Open Source Code, within our Service, hence we encourage you to be familiarized with such Open Source Terms. Note that we use best efforts to use only Open Source Codes that does not impose any obligation or affect the Content or related intellectual property (beyond what is stated in the Open Source Terms and herein), on an ordinary use of our Service that does not involve any modification, distribution or independent use of such Open Source Code. Notwithstanding anything to the contrary, we make no warranty or indemnity hereunder with respect to any Open Source Codes.
- Export Controls; Sanctions.
The Service may be subject to Israeli, U.S. or foreign export controls, Laws and regulations (the “Export Controls”), and you acknowledge and confirm that: (i) you are not located or use, export, re-export or import the Service (or any portion thereof) in or to, any person, entity, organization, jurisdiction or otherwise, in violation of the Export Controls; (ii) you are not: (a) organized under the laws of, operating from, or otherwise ordinarily resident in a country or territory that is the target or comprehensive U.S. economic or trade sanctions (currently, Cuba, Iran, Syria, North Korea, or the Crimea region of Ukraine), (b) identified on a list of prohibited or restricted persons, such as the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons, or (c) otherwise the target of U.S. sanctions. You are solely responsible for complying with applicable Export Controls and sanctions which may impose additional restrictions, prohibitions or requirements on the use, export, re-export or import of the Services and/or the Content; and (iii) the Content is not controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions, or otherwise requires any special permission or license, in respect of its use, import, export or re-export hereunder.
Occasionally we may make changes to these Terms for valid reasons, such as adding new functions or features to the Service, technical adjustments, typos or error fixing, for legal or regulatory reasons or for any other reasons as we deem necessary, at our sole discretion. The amended version will be effective as of the date it is published. Your continued use of the Service after the changes have been implemented will constitute your acceptance of the changes. If you do not agree with these Terms or any amendment thereof, you should no longer access or use the Service.
- Government Use.
If you are a part of a U.S. Government agency, department or otherwise, either federal, state or local (a “Government Customer”), then Government Customer hereby agrees that the Service under these Terms qualifies as “Commercial Computer Software” and “Commercial Computer Software Documentation”, within the meaning of Federal Acquisition Regulation (“FAR”) 2.101, FAR 12.212, Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7201, and DFARS 252.227-7014. Government Customer further agrees that the terms of this Section 18 shall apply to you. Government Customer’s technical data and software rights related to the Service include only those rights customarily provided to the public as specified in these Terms in accordance with FAR 12.212, FAR 27.405-3, FAR 52.227-19, DFARS 227.7202-1 and General Services Acquisition Regulation (“GSAR”) 552.212-4(w) (as applicable). In no event shall source code be provided or considered to be a deliverable or a software deliverable under these Terms. We grant no license whatsoever to any Government Customer to any source code contained in any deliverable or a software deliverable. If a Government Customer has a need for rights not granted under the Terms, it must negotiate with us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement. Any unpublished-rights are reserved under applicable copyright laws. Any provisions contained in these Terms that contradict any Law applicable to a Government Customer, shall be limited solely to the extent permitted under such applicable Law.
- Governing Law and Jurisdiction; Class Action Waiver and Mandatory Arbitration.
- Governing Law; Jurisdiction. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Israel without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Courts of competent jurisdiction located in Tel Aviv-Jaffa, Israel, shall have the sole and exclusive jurisdiction and venue over all controversies and claims arising out of, or relating to, these Terms. You and us mutually agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. Notwithstanding the foregoing, Filedriver.com reserves the right to seek injunctive relief in any court in any jurisdiction.
- Class Action Waiver. WHERE PERMITTED UNDER APPLICABLE LAW, YOU AND FILEDRIVER.COM AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Filedriver.com mutually agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
- Arbitration. To the extent permitted under applicable Law, you and Filedriver.com hereby irrevocably agree to the following provisions:
- Dispute resolution and Arbitration. Any dispute, claim, or controversy between you and us arising in connection with, or relating in any way to, these Terms (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination or expiration of these Terms) will be determined solely by mandatory binding arbitration. In arbitration there is no judge or jury and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of these Terms as a court would.
- Exception. Notwithstanding Section 19.3.1 above, you and Filedriver.com both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to seek injunctive relief in a court of law. In addition to the above, notwithstanding Section 19.3.1 above, Filedriver.com may file a suit in a court of law against you to address intellectual property infringement claims.
- Arbitration Process Rules. Either you or we may start arbitration proceedings. Any arbitration between you and us will be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “ICC”) then in force (the “ICC Rules”) by one arbitrator appointed in accordance with the ICC Rules. The arbitration will take place in Tel Aviv-Jaffa, and shall be conducted in the English language and unless otherwise required by a mandatory law of any jurisdiction, the law to be applied in any arbitration shall be the law of the State of Israel, without regard to choice or conflicts of law principles. The arbitration proceedings shall be conducted on an expedited basis and shall result in an award within no more than 60 days. The arbitration shall be conducted on a confidential basis. The award of the Arbitrator shall be final and binding on the parties. The arbitration award shall be enforceable in any court of competent jurisdiction. Any motion to enforce or vacate an arbitration award under this agreement shall be kept confidential to the maximum extent possible.
- Special Statute of Limitation. Any arbitration must be commenced by filing a demand for arbitration within 2 years after the date the party asserting the claim first knows or reasonably should know of the act, omission, or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits such limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable Law.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Dispute Notice”). The Dispute Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Dispute Notice is received, you or us may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or us shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Without derogating from the generality of the confidentiality protection under Section 19.3.3 above, all documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable Law. Except as required to enforce the arbitrator’s decision and award, neither you nor us shall make any public announcement or public comment or originate any publicity concerning the arbitration, including, but not limited to, the fact that the parties are in dispute, the existence of the arbitration, or any decision or award of the arbitrator.
- General Provisions.
- Translated Versions. These Terms were written in English, and may be translated into other languages for your convenience. If a translated (non-English) version of these Terms conflicts in any way with their English version, the provisions of the English version shall prevail.
- Force Majeure. Neither us nor you will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, interruption or failure of the Internet or any utility service, failures in third-party hosting services, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
- Relationship of the Parties; No Third Party Beneficiaries. The parties are independent contractors. These Terms and the Service provided hereunder, do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to these Terms.
- Notice. We shall use your contact details that we have in our records, in connection with providing you notices, subject to this Section 20.5. Our contact details for any notices are detailed below. You acknowledge notices that we provide you, in connection with these Terms and/or as otherwise related to the Service, shall be provided as follows: via the Service, including by posting on our Sites or posting in your account, text, in-app notification, e-mail, phone or first class, airmail, or overnight courier. You further acknowledge that an electronic notification satisfies any applicable legal notification requirements, including that such notification will be in writing. Any notice to you will be deemed given upon the earlier of: (i) receipt; or (ii) 24 hours of delivery. Notices to us shall be provided to Filedriver.com at email@example.com, or sent to 52 Menachem Begin Road, Tel Aviv 6713701, Israel.
- Assignment. These Terms, and any and all rights and obligations hereunder, may not be transferred or assigned by you without our written approval. We may assign our rights and/or obligations hereunder and/or transfer ownership rights and title in the Service to a third party without your consent or prior notice to you. Subject to the foregoing conditions, these Terms shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns. Any assignment not authorized under this Section 20.6 shall be null and void.
- Severability. These Terms shall be enforced to the fullest extent permitted under applicable Law. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect.
- No Waiver. No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. No waiver under these Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
Last update: November 1, 2020