FILESWAP.COM'S POSTING TERMS OF SERVICE
PLEASE READ THE FOLLOWING TERMS OF SERVICE. BY SUBSCRIBING TO FILESWAP.COM'S SERVICES, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, TYPE 'YES' INTO 'I AGREE TO THE TERMS OF SERVICE,' OR CHECK THE APPROPRIATE BOX MANIFESTING YOUR INTENT TO BE BOUND BY THESE TERMS AND CONDITIONS AND CONTINUE WITH THE ACCOUNT SET-UP PROCESS. YOU SHOULD PRINT-OUT A COPY OF THIS AGREEMENT FOR YOUR FUTURE REFERENCE. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE 'BACK' BUTTON ON YOUR BROWSER AND DO NOT SUBSCRIBE TO FILESWAP.COM'S SERVICES. FILESWAP.COM AGREES TO PROVIDE ITS SERVICES TO YOU ONLY IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN.
This Terms of Service ('Agreement') contains the complete and entire terms and conditions that apply to your use of FileSwap.com's Services (as defined below). FileSwap.com may modify the terms of this Agreement at its sole discretion upon reasonable notice (which may be effected by posting such changes onto the FileSwap.com's home page). Your continued use of the Services after the effective date of any such notice constitutes your acceptance of such changes.
At the time of initial registration, you will sign up for your free file posting account ('Services'). All subscriptions to Services are subject to acceptance by FileSwap.com. FileSwap.com reserves the right to refuse to provide you with any Service for any reason. FileSwap.com also reserves the right to interrupt access to the Services to perform regular and emergency maintenance as needed. All Services provided are subject to the terms and conditions of this Agreement.
2. ACCEPTABLE USE POLICY.
You agree to comply with the FileSwap.com's Acceptable Use Policy ('AUP'), specifically incorporated by reference, which may be found by accessing FileSwap.com's web site at www.FileSwap.com. FileSwap.com reserves the right to modify the AUP at any time by posting the modified policy on its web site. You agree to monitor the FileSwap.com home page for any changes to the AUP. Your continued use of the Services after the effective date of any changes to the AUP constitutes your manifestation of intent to be bound by such changes.
FileSwap.com may, at its sole discretion, immediately terminate your access to the Services, or this Agreement, if your conduct violates the AUP, or if any of your end users' conduct violate the AUP.
FileSwap.com will not actively monitor the content of the web sites being hosted by FileSwap.com, although FileSwap.com, at its sole discretion, may elect to electronically monitor its network and may disclose any content or records concerning your account as necessary to satisfy any law, regulation, or other governmental request or to properly operate our network and protect any of our customers. FileSwap.com will investigate complaints of a violation of a third party right or of the AUP. FileSwap.com will cooperate with those attempting to minimize Internet abuse and reserves the right to institute 'filters' or other mechanisms for that purpose. FileSwap.com will cooperate with law enforcement authorities and will notify such authorities if it suspects that you or any of your end users are engaged in illegal activities. You acknowledge and expressly agree that FileSwap.com will not be liable to you or any of your end users for any action FileSwap.com takes to remove or restrict access to the Services for any alleged violation of the AUP or exercising its rights as a Good Samaritan under the Telecommunications Act of 1996 or under the Digital Millennium Copyright Act of 1998.
3. INTELLECTUAL PROPERTY RIGHTS.
As between you and FileSwap.com, FileSwap.com asserts that it claims no proprietary rights in or to the content (including without limitation any literary works, sound recordings, audio visual works, motion pictures, photographs, animation, video and graphics, trademarks and service marks) supplied by you for use on your web site ('Your Content'). You hereby grant to FileSwap.com a non-exclusive, worldwide and royalty-free license to copy, make derivative works, display, perform, use, broadcast and transmit on and via the Internet Your Content so that FileSwap.com may perform its obligations hereunder by providing you with the Services.
FileSwap.com may (but is not obligated to) provide you with certain materials, including, without limitation, computer software (in object code or source code form), data, documentation or information developed or provided by FileSwap.com or its suppliers under this Agreement, domain names, electronic mail addresses and other network addresses assigned to you, and other know-how, methodologies, equipment, and processes used by FileSwap.com to provide you with the Services ('Host Materials'). Subject to the terms and conditions of this Agreement, FileSwap.com hereby grants you a limited, revocable, non-transferable, non-exclusive license to use the Host Materials solely in connection with your use of the Services. As between you and FileSwap.com, you acknowledge and agree that FileSwap.com owns all right, title, and interest or otherwise has acquired all applicable licenses for the Host Materials, and all copyright, trade secret, patent, trademark and other intellectual property rights therein. Any other use of the Host Materials is not licensed and strictly prohibited. You agree that you will not upload, transmit, reproduce, distribute or in any way exploit any Host Materials obtained through the Services without first obtaining the express prior written permission to do so from FileSwap.com.
This Agreement does not constitute a license to use FileSwap.com's trade names, service marks or any other trade insignia. Any use of any of FileSwap.com's trade names, services marks or any other trade insignia shall be subject to FileSwap.com's prior written consent.
4. NO WARRANTIES.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN 'AS IS, WITH ALL FAULTS' AND 'AS AVAILABLE' BASIS. FILESWAP.COM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FILESWAP.COM MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES FILESWAP.COM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY USE YOU MAKE OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
FILESWAP.COM MAY MAKE THIRD-PARTY GOODS, SERVICES AND/OR SOFTWARE AVAILABLE TO YOU THAT ARE NOT PART OF THE SERVICES ('THIRD-PARTY SERVICES'). FILESWAP.COM HAS NO CONTROL OVER THE CONTENT OF THIRD-PARTY SERVICES. USE OF ANY THIRD-PARTY SERVICES WILL BE AT YOUR OWN AND SOLE RISK AND SUBJECT TO THE TERMS AND CONDITIONS OF A SEPARATE AGREEMENT BETWEEN YOU AND THE THIRD-PARTY.
FILESWAP.COM MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FILESWAP.COM OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY, WHETHER BY IMPLICATION, ESTOPPEL OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY MARKETING OR PROMOTIONAL MATERIALS DESCRIBING THE SERVICES ON FILESWAP.COM'S WEBSITE.
UNLESS OTHERWISE AGREED TO IN WRITING, FILESWAP.COM DOES NOT MAKE A BACK-UP OF YOUR SITE(S) AS PART OF THE SERVICES. ACCORDINGLY, WE ENCOURAGE YOU TO MAKE A BACK-UP OF YOUR SITE(S) ON A REGULAR BASIS.
5. LIMITATION ON LIABILITY.
YOU ARE SOLELY RESPONSIBLE FOR THE PROPER OPERATION OF YOUR WEB-SITE(S) AND/OR CONDUCT OF YOUR BUSINESS(ES) AND ALL OTHER MATTERS UNDER YOUR CONTROL. IN NO EVENT SHALL FILESWAP.COM BE LIABLE TO YOU OR ANY OF YOUR END-USERS FOR ANY DAMAGES ARISING FROM OR RELATED TO YOUR OPERATION OF YOUR WEB-SITE(S) AND/OR BUSINESS(ES) OR FAILURE TO OPERATE YOUR WEB-SITE(S) AND/OR BUSINESS(ES).
THIS SECTION APPLIES TO ALL CLAIMS BY YOU OR YOUR END USERS IRRESPECTIVE OF THE CAUSE OF ACTION UNDERLYING THE CLAIM, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT, INCLUDING BUT NOT LIMITED TO ACTIONS FOR NEGLIGENCE OR STRICT LIABILITY.
REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, YOU AGREE THAT IN NO EVENT WILL FILESWAP.COM, OUR EMPLOYEES, INDEPENDENT CONTRACTORS, AGENTS, OR LICENSORS, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES, TECHNOLOGY, OR CONTENT AVAILABLE ON OR THROUGH THE SERVICES ('AFFILIATES'), BE LIABLE TO YOU IN ANY MANNER WHATSOEVER: (A) FOR ANY DECISION MADE OR ACTION OR NON-ACTION TAKEN BY YOU IN RELIANCE UPON THE INFORMATION PROVIDED THROUGH THE SERVICES; (B) FOR LOSS OR INACCURACY OF DATA OR, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (C) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OF REPUTATION, FOR BUSINESS INTERRUPTION OR SIMILAR ACTION, EVEN IF FILESWAP.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You agree to defend, indemnify, and hold FileSwap.com and its Affiliates harmless from and against any and all claims and liabilities, including reasonable attorneys' and experts' fees, related to or arising from (a) any breach of your covenants under this Agreement; (b) your use (or misuse) of the Services; (c) all conduct and activities occurring under your user ID and password; (d) any item or service sold or advertised in connection with Your Content or your information and data; (e) any defamatory, libelous or illegal material contained within Your Content or your information and data; (f) any claim or contention that Your Content or your information and data infringes any third party's patent, copyright or other intellectual property rights or violates any third party's rights of privacy or publicity; (g) third party access or use of Your Content or your information and data; or (h) any violation of the AUP. FileSwap.com reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from you, but shall have no obligation to do so. You shall not settle any such claim or liability without the prior written consent of FileSwap.com, which shall not be unreasonably withheld.
7. TERM AND TERMINATION.
This Agreement shall be effective for as long as you use the Services. Either you or FileSwap.com may terminate this Agreement, with or without cause, upon reasonable notice to the other party.
In addition to FileSwap.com's right to terminate this Agreement provided elsewhere in this Agreement, FileSwap.com may terminate this Agreement effective immediately if, based on FileSwap.com's sole judgment, it determines that: (a) you or any of your end-user's have breached the AUP, (b) infringed or violated any intellectual property right or privacy or publicity right of a third party, (c) not complied with Title 18, U.S.C. s. 2257, or (d) any of Your Content contains images which constitute child pornography, virtual child pornography, obscenity, bestiality, actual depictions of violence, or are otherwise illegal in the United States of America.
The termination of this Agreement will terminate your access to the Services and your license to the Host Materials. FileSwap.com shall not be liable to you or to any third party for termination of the Services for any reason (if, at the time of termination, FileSwap.com reasonably believed that either you or any of your end users were in violation of the AUP).
Upon termination of this Agreement, FileSwap.com reserves the right to maintain copies of your data files and records for archival purposes.
If either party cancels or terminates this Agreement for any reason, you shall be solely responsible for making all necessary arrangements for a replacement host.
Upon termination of this Agreement, provisions that by their nature would be expected to survive termination shall survive and remain in full force and effect in accordance with their terms.
8. DMCA COMPLIANCE.
FileSwap.com complies with all valid notices submitted under the Digital Millennium Copyright Act ('DMCA'). Send all DMCA Notices to our Designated Agent:
Lawrence G. Walters, Esq.
Walters Law Group
195 W. Pine Ave.
Longwood, FL 32750-4104
Do not send other correspondence to the Designated Agent.
9. GENERAL PROVISIONS.
A. Governing Law.
This Agreement and all matters arising out of or otherwise relating to this Agreement shall be governed by the laws of the State of Florida, excluding its conflict of law provisions. The parties hereby submit to the personal jurisdiction of the state and federal courts of the State of Florida. Exclusive venue for any litigation permitted under this Agreement shall be with the state and federal courts located in Seminole County, Florida.
If there is a dispute between the parties arising out of or otherwise relating to this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either party may submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted in Seminole County, Florida and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce. Except as provided below, the party bringing the action shall be responsible for paying all costs for arbitration, including the arbitrator's fees. Each party shall bear its own attorneys' fees (except if the matter is for the collection of a debt owed in which case the prevailing party shall be awarded its attorneys fees, all arbitration costs and arbitrator fees, in addition to all other applicable remedies). The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this Agreement, and shall be bound by governing and applicable law. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. This provision mandating arbitration for the resolution of disputes does not apply to any dispute involving intellectual property.
The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by you.
If for any reason a court of competent jurisdiction or arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
E. No Waiver.
Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.
F. Complete Agreement.
This Agreement (including the AUP) constitute the entire agreement between the parties with respect to the Services, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, including without limitation any marketing or promotional materials located on the FileSwap.com website, or any oral promises made by any sales representatives for FileSwap.com. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties, except as otherwise provided in this Agreement.
G. Relationship Between the Parties.
FileSwap.com is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. All liability shall be on the user/webmaster.
Section and subsection headings of this Agreement are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
I. Force Majeure.
FileSwap.com shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server, network or software, including Y2K errors or omissions, for so long as such event continues to delay FileSwap.com's performance.
You understand and acknowledge that the software elements of the Host Materials may be subject to regulation by agencies of the U.S. Government, including the U.S. Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. You will not assist or participate in any such diversion or other violation of applicable U.S. laws and regulations. You warrant that you will not license or otherwise permit anyone not approved to receive controlled commodities under applicable U.S. laws and regulations and that you will abide by such laws and regulations.
K. Government Rights.
The software elements of the Host Materials have been developed at private expense and is 'commercial computer software' or 'restricted computer software' within the meaning of the FARs, the DFARs, and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to: (i) grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or (ii) restrict any government rights in any extensions or custom solutions provided hereunder and developed at government expense.
L. Notices Electronic Communications.
All notices permitted or required under this Agreement may be sent by e-mail, fax, express mail, mail, or registered mail to the e-mail address, fax number, or physical address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained. Each of us may communicate with the other by electronic means as described in this Agreement.