Effective date: February 18, 2015
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN
THE “GOVERNING LAW; DISPUTES; ARBITRATION” SECTION BELOW, AND IF YOU DO NOT OPT-OUT AS SET FORTH IN THAT SAME SECTION, YOU AGREE THAT DISPUTES BETWEEN YOU AND FILEKEEPRS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.
When using particular services or features of the Website, Services, or Systems, both this Agreement and a separate contract, customer agreement, license agreement, terms of service, or a similar agreement (“Additional Terms”) may apply to your use of that service or feature. To the extent there is a conflict between this Agreement and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
If you are using the Website, Services, or Systems on behalf of a business or legal entity (such as your employer) (an “Entity”), you represent and warrant that you have the legal right and authority to (a) enter into this Agreement on behalf of the Entity, (b) grant the rights and licenses described in this Agreement on behalf of the Entity, and (c) bind the Entity to this Agreement. You acknowledge and agree that this Agreement will operate as an agreement between File Keepers and the Entity; and that references to you in this Agreement shall refer to the Entity and its affiliates. If you do not have such legal right and authority on behalf of the Entity, you may not use the Website, Services, or Systems.
If you violate this Agreement or authorize or help others to do so, we may suspend or terminate your use of the Website, Services or Systems, and pursue all other remedies available at law. You agree that FILE KEEPERS may monitor your compliance with this Agreement. You agree that FILE KEEPERS has the right to amend or modify this Agreement, at any time, and in FILE KEEPERS’ sole and absolute discretion. Each version of this Agreement shall be dated and the most recent version shall supersede older versions.
FILE KEEPERS offers this Website and access to its Systems, including all data stored or processed thereon, tools and Services available from this Website, to you (“you” or “your”), conditioned upon your acceptance of, and compliance with, all of these terms and conditions set forth in this Agreement. Your continued use of this site constitutes your agreement to this Agreement and constitutes agreement to this Agreement by the entity or person for whom you are working. If you do not wish to be bound by this Agreement, please do not use this Website, the Services or Systems. If you started using the Website, Services or Systems prior to the effective date of this Agreement, and your activities violate this Agreement, in order to continue using the Website, Services or Systems, you must promptly take action to ensure that your activities comply with this Agreement and discontinue any activities that are not in compliance with this Agreement.
You may not, and you may not encourage, promote, facilitate or instruct others, to engage in any of the following activities:
- Probing, scanning, penetrating or testing the vulnerability of this Website or Systems, or breaching FILE KEEPERS’ security or authentication measures, whether by passive or intrusive techniques, without FILE KEEPERS’ express written consent.
- Monitoring FILE KEEPERS’ data or traffic, or crawling Systems, or interfering with Services provided by FILE KEEPERS to customer or others, or otherwise harming or disrupting FILE KEEPERS’ business or reputation.
- Violating or interfering with the security of, or attempting to gain unauthorized access to, the Website, Services, or Systems (or any data, materials, information, computer systems or networks connected on or connected with them), through hacking, password mining or any other means, or otherwise bypassing or circumventing any measure employed to limit or prevent access to the Website, Services, Systems, or any content thereon.
- Extracting data from, reverse engineering, decompiling, or disassembling any software, Services, or Systems owned or licensed by FILE KEEPERS.
- Using the Website, Services or Systems for illegal purposes or to violate any laws, or engaging in any fraudulent, unfair or deceptive purposes or activities.
- Using any robot, spider, scraper, data mining technology or process, spyware, malicious code or other similar automated means or any manual process for any purpose without our express written permission.
- Copying or distributing content from the Website, Services, or Systems (except as may be a result of standard search engine or Internet browser usage), or reproducing, republishing, modifying, creating derivative works of, uploading, downloading, performing, displaying, posting, transmitting, or otherwise using content of the Website, Services, or Systems, in any way not expressly authorized by this Agreement, without the prior written permission of a duly authorized File Keepers employee.
- Any action that imposes, or may impose, in File Keepers discretion, an unreasonable or disproportionately large load on, or interfere with, or block access to, the Website, Services or Systems.
- Posting or transmitting any false, misleading, unlawful, threatening, libelous, defamatory, obscene, indecent, inflammatory, pornographic or profane material, or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law.
- Posting, transmitting, making accessible or sharing any material or content in violation of any copyright, trademark, patent or other proprietary right, or wrongfully disclosing or violating a trade secret.
- Inputting any of the following data into the Website, Services or Systems, or using the following data as an identifier or field header: (a) social security numbers, passport numbers, driver’s license numbers or other government identification numbers; (b) financial account numbers, including without limitation bank account numbers and loan numbers; (c) payment card information, including without limitation debit and credit card numbers, security codes and other sensitive information; or (d) passwords, pin codes or other access or login credentials; (e) health care information, including without limitation, medical record information and account numbers; (f) employee numbers; or (g) names, physical addresses and email addresses of individuals.
- Uploading or transmitting to the Website, Services or Systems, or using any device, software or routine that contains, any malicious code, virus, Trojan horses, worm, time bombs, or other computer programming routines that may interfere or attempt to interfere with, the normal operation of Systems, Services, Website or any data, appropriate the Website or Systems, or corrupt, damage or steal any information stored, processed or transmitted by the Systems, Services or Website.
- Violating privacy rights, publicity rights, or information security, including dissemination of material non-public information about companies without authorization.
- Publishing, storing or transmitting any content that constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts, that is excessively violent, incites violence, threatens violence or contains harassing content or hate speech, or that creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security or interferes with a investigation by law enforcement.
- Publishing, storing or transmitting any content that promotes illegal drugs, violates export control laws, or relates to illegal gambling or illegal arms trafficking.
Membership & Registration. Certain areas of the Website, Services, and Systems may require registration or may otherwise ask or require you to provide information to use certain services or features. When you choose to provide information, you agree to provide only true, accurate, current and complete information. If you register with us, you agree to be responsible for any activities that occur under your account or password, and you agree you will not sell or otherwise transfer your membership or any membership rights. File Keepers reserves the right to terminate your account or otherwise deny you access in its sole discretion without notice and without liability. You agree that you will be responsible for obtaining and maintaining all computer hardware, internet connectivity, and other equipment needed to access and use the Website, Services, and Systems. You also agree to comply with all rules, laws and regulations that are applicable to your use of the Website, Services, and Systems, including, without limitation, those governing your transmission or use of any software or data.
Links to Other Websites. This Website may contain links to other websites, services, and features that are operated by third parties not affiliated with FILE KEEPERS. Functionality on the Website, Services, or Systems may also permit interactions between the Website, Services, or Systems, on the one hand, and a third party web site or online feature, on the other hand, including applications that connect the Website, Services, or Systems or your profile on the Website, Services, or Systems with a third party site. These links are provided as a convenience to you and as an additional avenue of access to the information contained therein. We have not necessarily reviewed the information on those other sites and are not responsible for the content of those or any other websites or any products or services that may be offered through those or any other sites. Inclusion of links to other sites should not be viewed as an endorsement of the content of linked sites. Different terms and conditions may apply to your use of any linked sites. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTIES FOUND THROUGH THE WEBSITE, SERVICES, AND SYSTEMS INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. FILE KEEPERS is not responsible for any losses, damages or other liabilities incurred as a result of your use of any linked sites.
Linking to the Website.File Keepers grants you the revocable permission to link to the Website; provided, however, that any link to the Website: (a) must not present false information about, disparage damage, dilute or tarnish the goodwill associated with File Keepers or its products or services, any File Keepers property or any other intellectual property; (b) must not create the false appearance that your web site or organization is sponsored, endorsed by, affiliated or associated with File Keepers; (c) must not frame or create a browser or border environment around any of the content on the Website or otherwise mirror any part of the Website; (d) must not use any File Keepers trademarks without the prior written permission from File Keepers; (e) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in File Keepers’ sole opinion); and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to this Agreement. You agree that you will not link to the Website from any source that is unlawful, abusive, indecent or obscene, that promotes violence or illegal acts, that contains expressions of racism, that is libelous, defamatory, scandalous, or inflammatory or is otherwise inappropriate (in File Keepers’ sole discretion). By linking to the Website, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in this Agreement, File Keepers reserves the right to prohibit linking to the Website for any reason in our sole and absolute discretion.
You may choose, at your sole and absolute discretion and risk, to use applications or other functionality that connects the Website, Services, or the System or your account with us to a third party web site or service (“Social Features”). Such Social Features may interact with, connect to or gather and/or pull information from and to your account on the Website, Services, or the System. By using Social Features, you acknowledge and agree: (i) if you use Social Features to share information relating to your account on the Website, Services, or the System, you are consenting to that information being shared; (ii) your use of Social Features may cause personally identifying information to be publicly disclosed and/or associated with you, even if File Keepers has not provided such information; and (iii) your use of Social Features is at your own option and risk, and you will hold File Keepers harmless for the sharing of information relating to your account on the Website, Services, or the System that results from your use of Social Features. You must read all log-in boxes and other pop-up boxes closely for notices about sharing your account information with, through or by any other means identified on or in connection with Social Features.
The Site may offer features and services that are available to you via your mobile phone or other mobile device. These features and services may include, without limitation, the ability to view or access the Website or Services, upload content to the Website or Services, receive messages from the Website or Services (including via SMS, MMS, or otherwise), and download applications to your mobile device (collectively, the “Mobile Features”). We may charge for Mobile Features and these charges will be disclosed prior to completion of registration for the Mobile Feature. Also, standard messaging, data and other fees may be charged by your carrier. Fees and charges will appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues. As applicable, instructions regarding how to opt-out of Mobile Features will be disclosed in connection with Mobile Features. If you sign up to receive SMS or MMS messages that may be offered on the Website or Services, you may unsubscribe from any text messages received by replying “STOP.” You agree that the Mobile Features for which you are registered may send communications to your mobile device regarding File Keepers, the Website, the Services, or a product or service for which you signed up. Further, we may collect information related to your use of the Mobile Features. If you have registered for Mobile Features, you agree to notify File Keepers of any changes to your mobile number and update your account(s) on the Website or Services, as applicable, to reflect this change.
If you sign up to receive promotional or marketing text messages (including SMS and MMS messages) from us, you acknowledge and agree that we may send such messages using an autodialer to the number you provide. You acknowledge and agree that you are not required to receive our text messages, and that you are not required to agree to receive text messages as a condition of purchasing any property, goods, or services.
Trademarks and Copyrights
Trademarks, logos and service marks displayed on this Website are registered and unregistered trademarks of FILE KEEPERS, its licensors or content providers, or other third parties. All of these trademarks, logos and service marks are the property of their respective owners. Nothing on this Website shall be construed as granting, by implication, estoppel or otherwise, any license or right to use any trademark, logo or service mark displayed on the site without the owner’s prior written permission, except as otherwise described herein. FILE KEEPERS reserves all rights not expressly granted in and to the Website and its content. This Website and all of its content, including but not limited to text, design, graphics, interfaces and code, and the selection and arrangement thereof, is protected as a compilation under the copyright laws of the United States and other countries.
Subject to your strict compliance with this Agreement and any Additional Terms, File Keepers grants you a limited, personal, non-exclusive, non-commercial, revocable, non-assignable and non-transferable license to access and view the content on the Website, Services, and Systems (excluding source and object code, other than as made available to access and use via standard web browsers to enable display on your device). When you access or view the content, you must: (a) keep intact all copyright and other proprietary notices; (b) make no modifications to the content; and (c) not allow or assist any third party (whether or not for your benefit) to copy or adapt any object code associated with the Website, Services, or Systems or reverse engineer, modify or attempt to discover any source code associated with the Website, Services, or Systems.
You agree to abide by any and all copyright notices, information, or restrictions contained in any part of the Website, Services, or Systems. Any and all rights to use the Website, Services, or Systems that are not expressly granted to you under this Agreement are reserved for File Keepers or its licensors. Nothing contained in this Agreement will affect, impair, or limit in any way File Keepers’ rights to exploit fully any or all of the content on the Website, Services, or Systems. Unauthorized use may be a violation of federal and state laws and could result in civil and criminal liability.
Sweepstakes, Contests, or Promotions. Any sweepstakes, contests, or promotions (“Promotions”) accessible through the Website, Services, or Systems may be governed by its own set of official rules, which may have eligibility requirements, such as certain age or geographic area restrictions. By entering or participating in such Promotions, you will become subject to those official rules. It is your responsibility to read the applicable rules to determine whether or not your participation, registration or entry will be valid or restricted, and to determine the sponsor’s requirements of you in connection with the applicable Promotion.
The information provided on the Website, Services, and Systems is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject File Keepers to any registration requirement within such jurisdiction or country. File Keepers controls and operates the Website, Services, and Systems from offices located in the United States and makes no representations or warranties that the information, products or services contained on the Website, Services, and Systems are appropriate for use or access in other locations. Anyone using or accessing the Website, Services, and Systems from other locations does so on their own initiative and is responsible for compliance with United States’ and local laws regarding online conduct and acceptable content, if and to the extent such laws are applicable. We reserve the right to limit the availability of the Website, Services, or Systems, or any portion of the Websites, Services or Systems, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that we provide.
Software related to or made available by the Website, Services, and Systems may be subject to United States export controls. Thus, no software from the Website, Services, and Systems may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States government has embargoed goods or designated as a “terrorist supporting country”; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Commerce Department’s Table of Deny Orders, or any other U.S. Government list of prohibited or restricted parties. By downloading any software related to the Website, Services, and Systems, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
THE WEBSITE, SERVICES AND SYSTEMS ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. FILE KEEPERS DOES NOT MAKE AND, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, EXPRESSLY DISCLAIMS, AND YOU HEREBY WAIVE, ALL WARRANTIES, GUARANTEES AND REPRESENTATIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF TITLE, NON-INFRINGEMENT, PERFORMANCE, MERCHANTABILITY, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, FREEDOM FROM COMPUTER VIRUS, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OMISSIONS, COMPLETENESS, AND DELAYS. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
WITHOUT LIMITING THE FOREGOING, FILE KEEPERS DOES NOT WARRANT, GUARANTEE OR REPRESENT THAT THE WEBSITE, SERVICES AND SYSTEMS WILL BE TIMELY, UNINTERRUPTED, SECURE, COMPLETE, ACCURATE, BUG OR ERROR FREE, THAT DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE WEBSITE, SERVICES, SYSTEMS AND DATA ARE FREE OF VIRUSES, MALICIOUS CODE, BUGS OR OTHER HARMFUL COMPONENTS. NO OPINION, ADVICE, OR STATEMENT OF FILE KEEPERS, WHETHER MADE ON THE WEBSITE, SERVICES, SYSTEMS, OR OTHERWISE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
FURTHER, FILE KEEPERS DOES NOT WARRANT THAT YOUR ACTIVITIES OR USE OF THE WEBSITE, SERVICES, OR SYSTEMS IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, FILE KEEPERS SPECIFICALLY DISCLAIMS SUCH WARRANTIES.
FILE KEEPERS SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, DEATH, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) BASED UPON OR RESULTING FROM ANY OPINION, ADVICE, INFORMATION, STATEMENT OR OTHER SUBMISSIONS MADE OR DISPLAYED ON THE WEBSITE, SERVICES, OR SYSTEMS BY THIRD PARTIES.
PLEASE REMEMBER THAT IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY AND RELIABILITY OF ANY OPINION, ADVICE, INFORMATION OR STATEMENT AVAILABLE ON THE WEBSITE, SERVICES, OR SYSTEMS. A POSSIBILITY EXISTS THAT THE WEBSITE, SERVICES, OR SYSTEMS COULD INCLUDE INACCURACIES OR ERRORS. ADDITIONALLY, A POSSIBILITY EXISTS THAT UNAUTHORIZED ALTERATIONS COULD BE MADE TO THE WEBSITE, SERVICES, OR SYSTEMS BY THIRD PARTIES. ALTHOUGH WE ATTEMPT TO ENSURE THE INTEGRITY OF THE WEBSITE, SERVICES, AND SYSTEMS, FILE KEEPERS MAKES NO GUARANTEES AS TO COMPLETENESS OR CORRECTNESS OF THE WEBSITE, SERVICES, AND SYSTEMS.
YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THE WEBSITES, SERVICES, OR SYSTEMS, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN THE JURISDICTION WHERE YOU ACCESS OR USE THE WEBSITE, SERVICES, OR SYSTEMS.
Limitation of Liability
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, NO FILE KEEPERS PARTY SHALL BE LIABLE TO YOU FOR ANY: CLAIM(S), SUIT(S), EXPENSES, COSTS, DAMAGES (INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, ECONOMIC, EXEMPLARY, PUNITIVE, MULTIPLE, OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY), INJURY, HARM OR LOSS, ARISING OUT OF OR RELATING IN ANY WAY, DIRECTLY OR INDIRECTLY, TO: (A) THE WEBSITE, SERVICES, OR SYSTEMS; (B) YOUR USE OF, INABILITY TO ACCESS OR USE, OR THE PERFORMANCE OF, THE WEBSITE, SERVICES, SYSTEMS OR DATA; (C) SECURITY BREACH OR UNAUTHORIZED ACCESS OR USE OF THE WEBSITE, SERVICES, SYSTEMS OR DATA; (D) DAMAGE TO PROPERTY; (E) FINES OR PENALTIES OF ANY ORIGIN; (F) LOST PROFITS, BUSINESS OR ANTICIPATED SAVINGS; (G) WORK STOPPAGE; (H) PERSONAL INJURY, DEATH OR EMOTIONAL DISTRESS; (I) BUSINESS INTERRUPTION; (J) COSTS OR PROCUREMENT OF ANY SUBSTITUTE GOODS, SERVICES OR SOFTWARE; (K) LOSS OF DATA; (L) ANY CORRUPTED, INACCURATE, INCOMPLETE OR OUT-OF-DATE DATA; (M) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE FILE KEEPERS PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE WEBSITE, SERVICES, OR SYSTEMS; (N) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (N) ANY DAMAGE TO ANY PERSON’S DEVICE, HARDWARE, DEVICE SOFTWARE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF ANY FILE KEEPERS PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
IN NO EVENT SHALL ANY OF THE FILE KEEPERS PARTIES’ AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, YOUR USE OF THE WEBSITE, SERVICES OR SYSTEMS, OR OTHERWISE, WHETHER IN CONTRACT, TORT, STATUTE OR ANY OTHER THEORY OF LIABILITY, EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). YOU AGREE AND UNDERSTAND THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THIS AGREEMENT AND IS AN ESSENTIAL FACTOR IN ESTABLISHING THE SERVICES AND FEES WITH RESPECT TO THIS AGREEMENT. THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY.
FILE KEEPERS SHALL BE EXCUSED FROM PERFORMANCE UNDER THIS AGREEMENT TO THE EXTENT FILE KEEPERS IS PREVENTED FROM OR DELAYED FOM PERFORMING, IN WHOLE OR IN PART, AS A RESULT OF AN EVENT OR SERIES OF EVENTS CAUSED BY OR RESULTING FROM (1) WEATHER CONDITIONS OR OTHER ELEMENTS OF NATURE OR ACTS OF GOD, (2) ACTS OF WAR, TERRORISM, INSURRECTION, RIOTS, CIVIL DISORDERS, OR REBELLION, (3) QUARANTINES OR EMBARGOES, (4) LABOR STRIKES, OR (5) OTHER CAUSES BEYOND THE REASONABLE CONTROL OF FILE KEEPERS.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF FILE KEEPERS’ ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF THE WEBSITE, SERVICES, OR SYSTEMS, OR ANY OF FILE KEEPERS’ OTHER WEB SITES, PROPERTY, PRODUCTS, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE FILE KEEPERS PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF THE WEBSITE, SERVICES, OR SYSTEMS, OR ANY OTHER FILE KEEPERS WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE FILE KEEPERS PARTIES.
BY ACCESSING THE WEBSITE, SERVICES, AND SYSTEMS, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Governing Law; Disputes; Arbitration
A. Governing Law. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS HEREUNDER, AND ALL CAUSES OF ACTION (WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE TERMINATION OF THIS AGREEMENT, OR THE USE OF THE WEBSITE, SERVICES, OR SYSTEMS (OR ANY OF THEM), ARE BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS (AS DISTINGUISHED FROM THE CHOICE OF LAW RULES) OF THE STATE OF CALIFORNIA AND THE UNITED STATES OF AMERICA APPLICABLE TO CONTRACTS MADE AND PERFORMED ENTIRELY IN CALIFORNIA.
B. Waivers. Both you and File Keepers hereby expressly waive trial by jury. Both you and File Keepers waive the right to bring or resolve any dispute as a class, consolidated, representative, collective, or private attorney general action. Both you and File Keepers waive the right to participate in a class, consolidated, representative, collective, or private attorney general action brought by anyone else.
C. Arbitration of Disputes. Unless you opt-out specifically as set forth in this Section, you agree that all disputes between you and File Keepers (whether or not such dispute involves a third party) with regard to this Agreement or your use of the Website, Services, and Systems (or any of them) will be resolved by binding, individual arbitration, except for disputes relating to the infringement of your or File Keepers’ intellectual property (such as trademarks, trade dress, copyright and patents) or where File Keepers is seeking a preliminary injunction (“Excluded Disputes”). You agree that arbitration will be conducted by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures then in effect. Notwithstanding any provision of the JAMS Comprehensive Arbitration Rules and Procedures then in effect, the arbitrators shall not have the authority or jurisdiction to hear the arbitration as a class, consolidated, representative, collective, or private attorney general action or to consolidate, join, or otherwise combine the claims of different persons into one proceeding.
This dispute resolution provision will be governed by the Federal Arbitration Act and, where consistent, California law. The arbitration will be conducted in Los Angeles, California, in the English language by three arbitrators appointed in accordance with the JAMS Comprehensive Arbitration Rules and Procedures then in effect. Judgment on the award rendered by the arbitrators may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrators will not have authority to award punitive or exemplary damages.
D. Opt-Out of Arbitration. If you do not wish to have any dispute between you and File Keepers arbitrated, you must notify File Keepers in writing within thirty (30) days of the date that you first became subject to this arbitration clause. You may provide such written notice by postal mail at the following address: File Keepers Arbitration Opt Out, 5300 Melrose Avenue – 4th Fl. West Office Bldg., Hollywood, CA 90038, Attn: General Counsel, Raleigh. Your written notification to File Keepers must include (1) your name, (2) your postal address, (3) your user ID (if applicable), and (5) a clear statement that you do not wish to resolve disputes with File Keepers through arbitration. Please note that opting out of arbitration will not affect any other agreements or waivers made in this Section 18.
E. Venue. If you have not validly opted out of arbitration, you agree that any action at law or in equity relating to the arbitration provision of this Agreement or the Excluded Disputes will be filed only in the state or federal courts located in Los Angeles, California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. If you have validly opted out of arbitration, you agree that any action at law or in equity will be filed only in the state or federal courts located in Los Angeles, California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
File Keepers reserves the right, without notice or liability and at its sole discretion, to suspend or terminate this Agreement and/or your ability to access or use the Website, Services, or Systems (or any portion thereof), and to block or prevent future access to and use of the Website, Services, or Systems for any reason, including, without limitation, your breach of this Agreement or other conduct by you that File Keepers considers inappropriate. File Keepers reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website, Services, or Systems with or without notice. You agree that no File Keepers Party shall be liable to you or to any third party for any modification, suspension or discontinuation of the Website, Services, or Systems. You acknowledge and agree that termination, suspension, or cancellation of this Agreement or your access to the Website, Services, or Systems will not affect any right or relief to which File Keepers may be entitled, at law or in equity, nor shall they affect any obligation you have to File Keepers, including but not limited to the payment of fees.
Upon termination of this Agreement, all rights granted to you will automatically terminate and immediately revert to File Keepers and its licensors. Upon termination of your access to the Website, Services, or Systems, or upon demand by File Keepers, you must destroy all content obtained from the Website, Services, or Systems and all related documentation including immediately discontinuing the use of any links to the Website. Any provisions of this Agreement, which, by its terms, ought to survive, shall survive any termination of this Agreement.
You understand and agree that File Keepers will determine your compliance with this Agreement in its sole discretion. Any violation of this Agreement may be referred to law enforcement authorities.
You acknowledge and agree that this Agreement and any applicable Additional Terms constitute the complete and exclusive agreement between you and File Keepers concerning your access to and use of the Website, Services, and Systems, and supersede and govern all prior proposals, agreements, or other communications, whether oral or in writing, with respect to the Website, Services, and Systems. Neither party has relied on any statement or representation not set forth in this Agreement and any applicable Additional Terms. You represent, warrant, and covenant that your access to and use of the Website, Services, and Systems will comply with this Agreement.
If any provision of this Agreement is found to be unlawful, void, or for any reason unenforceable, then that provision shall be modified to the least extent necessary to make it enforceable and shall not affect the validity and enforceability of any remaining provisions. This Agreement is not assignable, transferable or sublicensable by you except with the prior written consent of a duly authorized File Keepers employee. File Keepers may assign this Agreement without your prior notice or consent. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or paragraph title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any paragraph or provision hereof. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between you and File Keepers. You agree that this Agreement will not be construed against File Keepers by virtue of having drafted this Agreement.
Changes to this Agreement. We reserve the right, in our sole discretion and at any time, to change or add to the terms of this Agreement without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Website so that they are accessible via a link from the home page, and that your use of the Website after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review this Agreement before using the Website, Services, or Systems. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Website, Services, and Systems from that point forward.
Contacting Us. If you have any comments or questions regarding this Agreement, or wish to report any violation of this Agreement, please contact us via www.filekeepers.com/contact.