This Wikisend.com Terms of Service Agreement (the "Agreement") describes the terms and conditions on which Wikisend.com ("we" or "Company") offer services to you ("Customer" or "You"). By registering for or using Wikisend.com services, Customer agrees to be bound by the following terms and conditions. You should carefully read the following Terms of Service Agreement before using the Wikisend.com website ("Site") and our services ("Services").
Our Services are available only to individuals and business entities (including but not limited to sole proprietorships) in good legal standing that can form legally binding contracts under applicable law. Customer hereby represents and warrants that it is duly licensed to do business and is in good legal standing in the jurisdictions in which it does business (during the term of this Agreement), that it is not a competitor of Wikisend.com, and that the person agreeing to this Agreement for Customer is at least eighteen years of age and otherwise capable of and authorized to enter binding contracts for Customer.
Subject to the terms and conditions of this Agreement, Wikisend.com makes certain Services available to Customer. For the purposes of this Agreement: (a) "Customer" (or "you") means the individual or business entity that is using or registering to use the Services, including its employees and agents; (b) Wikisend.com "Services" means those electronic or interactive services offered by Wikisend.com. Wikisend.com reserves the right to change or discontinue any of the Services at any time.
You acknowledge that all materials (except those uploaded by users) provided on this Web site, including but not limited to information, documents, products, logos, graphics, sounds, images, software, and services (collectively "Materials"), are provided either by Wikisend.com or by their respective third party authors, developers and vendors (collectively "Third Party Providers") and the underlying intellectual property rights are owned by Wikisend.com and/or its Third Party Providers. Elements of the Web site are protected by trade dress and other laws and may not be copied or imitated in whole or in part. Wikisend.com, the Wikisend.com logo and other Wikisend.com products referenced herein are trademarks of Wikisend.com, and may be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols may be the trademarks of their respective owners.
Customer represents and warrants that the information it provides in Wikisend.com contact information forms is true, accurate, current and complete. Customer agrees to maintain and update this information to ensure that it is true, accurate, current and complete. If, at any time, any information provided by Customer is untrue, inaccurate, not current or incomplete, Wikisend.com will have the right to suspend or terminate Customer's account and this Agreement.
Customer may designate persons to act as its agents to use the Services, provided that each designated person has the legal capacity to enter into binding contracts for Customer. Furthermore, Customer represents and warrants that each person who registers under Customer's account is an authorized agent of Customer (an "Authorized User") who has such legal capacity.
Customer is solely responsible and liable for any and all access to and use of the Services (including all activities and transactions) by any Authorized User and/or User ID registered under Customer's account, unless such access to or use of the Services is the direct result solely of the gross negligence of Wikisend.com. It is Customer's responsibility, through its systems administrator Authorized User, to set the appropriate access for each of Customer's Authorized Users.
Customer is solely responsible for maintaining the confidentiality of Customer access information, i.e. account ID's and passwords of its Authorized Users, and are responsible for all activities that occur under your account.
Customer will immediately notify Wikisend.com if Customer notices any activity indicating that Customer's account or data is being used without authorization, including: (a) Customer has received confirmation of an order or orders placed using Customer's account which Customer did not place or any similar conflicting report; or (b) Customer becomes aware of any unauthorized use of any product or service related to its account(s).
Customer has sole responsibility and liability for the data its stores on Wikisend.com's servers. Customer controls its data through its generated link. Wikisend.com encourages Customer to archive its data regularly and frequently; Customer bears full responsibility for archiving its data and sole liability for any lost or irrecoverable data. Customer agrees to maintain its data in compliance with its legal obligations. Wikisend.com will delete Customer data upon termination of this Agreement. However, Wikisend.com may retain Customer data in its archives after deletion and will not be liable to Customer in any way for such retained data.
Wikisend.com will provide access to the Services and Customer's data to an agent of Customer ("Authorized Agent") who provides Wikisend.com with a notarized letter signed by an officer of Customer which letter shall include statements of authenticity, authority, and liability as required by Wikisend.com in its sole discretion. Customer expressly and irrevocably agrees that Wikisend.com may rely on such a letter and on the apparent authority of the person requesting access to the Services or to Customer's account. In no event will Wikisend.com be liable to Customer or any third party for Wikisend.com's reliance on such letter or such apparent authority.
You agree to not use Wikisend.com's Service to:
Wikisend.com neither sanctions nor permits site content or the transmission of data that contains illegal or obscene material or fosters or promotes illegal activity, including but not limited to, gambling, the offering for sale of illegal weapons, and the promotion or publication of any material that may violate hate crimes legislation. Wikisend.com reserves the right to immediately suspend or terminate any account or transmission that violates this policy, without prior notice. Further, should Customer violate this policy, Wikisend.com will actively assist and cooperate with law enforcement agencies and government authorities in collecting and tendering information about Customer, Customer's site, the illegal or obscene content, and those persons that may have inappropriately accessed, acquired, or used the illegal or obscene content.
Customer shall not commit or permit wrongful or damaging acts which justify civil action including, but not limited to, posting of defamatory, scandalous, or private information about a person without their consent or intentionally inflicting emotional distress.
Violations or attempts to violate Wikisend.com systems or to interrupt Wikisend.com services are strictly prohibited, and may result in criminal and civil liability. Examples of system violations include, without limitation:
(a) Unauthorized access to or use of Wikisend.com Services, including any attempt to probe, scan or test the vulnerability of a system or to breach security or authentication measures without express authorization of Wikisend.com; or (b) Interference with Service to any customer or network including, without limitation, flooding, or deliberate attempts to overload a system and broadcast attacks; or (c) Use of any device, software, or routine to interfere or attempt to interfere with the proper working of the Services; or (d) Any action that imposes an unreasonable or disproportionately large load on Wikisend.com's infrastructure
Customer shall not decompile, disassemble, decrypt, extract, reverse engineer or otherwise attempt to derive the source code of the "software tools" (including the tools, methods, processes, and infrastructure) underlying the Services or any other software on the Wikisend.com Web site.
Wikisend.com Services may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation, including export control laws, is prohibited. This includes, without limitation, material protected by patent, copyright, trademark, service mark, trade secret or other intellectual property rights. If you use another party's material, you must obtain prior authorization. By using the Services, you represent and warrant that you are the author and copyright owner and/or proper licensee with respect to any hosted content and you further represent and warrant that no content violates the trademark or rights of any third party. Wikisend.com reserves the right to suspend or terminate a Customer's transmission(s) that, in Wikisend.com's discretion, violates these policies or violates any law or regulation. Wikisend.com's DMCA Policy, which is herein incorporated by reference, has further important details on this matter.
Customer shall not misuse system resources including, but not limited to, employing content which consume excessive CPU time or storage space; utilizing excessive bandwidth; or resale of access to content hosted on Wikisend.com servers.
Whether lawful or unlawful, Wikisend.com reserves the right to determine what is harmful to its Customers, operations or reputation, including any activities that restrict or inhibit any other user from using and enjoying the Service or the Internet. Please be aware Wikisend.com reserves the right to cancel any account or transmission they find in violation of any of the above policies. If appropriate, Wikisend.com will refer complaints to law enforcement authorities, and in such case, Wikisend.com will actively assist law enforcement agencies with the investigation and prosecution of any such activities, including surrendering Customer account and data information. Complaints about violators of our Policy should be sent via e-mail to abuse@Wikisend.com. Each complaint will be investigated and may result to immediate cancellation of Services without prior notice.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. Wikisend.com SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Wikisend.com AND ITS SUPPLIERS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT OF PROPRIETARY OR THIRD PARTY RIGHTS. Wikisend.com AND ITS SUPPLIERS MAKE NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF OUR SERVICES, SOFTWARE, OR CONTENT; (B) Wikisend.com MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED; (D) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE 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 ANY SUCH MATERIAL; (E) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.
You agree to defend, indemnify, and hold harmless Wikisend.com, its affiliates, officers, directors, employees and agents, from and against any claims, actions or demands, including without limitation reasonable legal fees, alleging or resulting from your use of the Service, or your breach of this Agreement or other Wikisend.com policies, terms and conditions.
Your use of Wikisend.com is at your own risk. If you are dissatisfied with any aspect of our Service or with these terms & conditions, or any other rules or policies, your sole remedy is to discontinue use of the Service. You expressly understand and agree that Wikisend.com shall not be liable for any direct, indirect, incidental, special, consequential exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if we have been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the Service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; (iii) unauthorised access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the service; or (v) any other matter relating to the Service.
We reserve the right to change this Service Agreement at any time without notice. We also reserve the right at any time to modify or discontinue the Service, temporarily or permanently, with or without notice to you. You agree that we shall not be liable to you or any third party for any modification, suspension or discontinuance of the Service. You acknowledge that we may establish general practices and limits concerning use of the Service, including the maximum disk space that will be allotted on Wikisend.com's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. Further, you acknowledge that Wikisend.com may change subscription fees at any time without notice. Changes in subscription fees will take effect on expiration of any existing Customer subscription.
Without limiting other remedies, Wikisend.com may immediately issue a warning, suspend (i.e., lock out access and operation of Services for Customer) either temporarily or indefinitely, or terminate Customer's account and refuse to provide Services to Customer if: (a) Wikisend.com believes that Customer has violated or acted inconsistently with this Agreement, or any of our policies; or (b) Customer has failed to pay fees or other payments due to Wikisend.com; or (c) Wikisend.com is unable to verify or authenticate any information Customer provides to Wikisend.com; or (d) Wikisend.com believes that Customer's actions may cause legal liability for Customer, Wikisend.com's other clients, or Wikisend.com. Wikisend.com may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these terms and conditions may be effected without prior notice, and acknowledge and agree that Wikisend.com may immediately deactivate, archive or delete your account and all related information and data and/or any further access to such data or the Service. Further, you agree that Wikisend.com shall not be liable to you or any third-party for any termination of your access to the Service.
Upon termination of this Agreement by either Customer or Wikisend.com, all of Customer rights under this Agreement, and Wikisend.com's provision of Services, will terminate immediately.
The Sections 6 ("Customer Data"), 8 ("No Warranty"), 9 ("Indemnity"), 10 ("Limitation Of Liability") and this Section 12 will survive any termination of this Agreement.
If any controversy or dispute arising from or relating to this Agreement, your use of the Site, the Services provided to you by Company, or any other matter related to the relationship between you and the Company, even if arising after termination of this Agreement, cannot be resolved through mutual agreement, the sole means of resolving the controversy will be binding arbitration under the auspices of the Australian Arbitration Association ("AAA") in the State of Queensland, Australia, in accordance with the AAA's then-existing Commercial Arbitration Rules. The arbitration award may be enforced as a judgment by a court of competent jurisdiction. This arbitration provision will apply to all disputes between us relating to the services provided to you and alleged infringement of your copyrights or other intellectual property on or through the Site, and will survive termination of our relationship and this Agreement. You also acknowledge that you understand the consequences of agreeing to binding arbitration, including that you giving up any and all constitutional and statutory rights to have disputes between us, including copyright infringement disputes, determined by a court of law or equity or by a jury; that discovery of information in arbitration may be limited; and that the arbitration decision will be final and binding, except to the limited extent that law provides for judicial review of arbitration proceedings and decisions.
These terms and conditions will be governed by and construed in accordance with the laws of the State of Queensland, Australia, excluding that body of law governing conflict of laws. If any provision of these Terms is held to be invalid or unenforceable, such provision will be enforced to the greatest extent possible and the remaining provisions will remain in full force and effect. Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section. Wikisend.com's failure to act with respect to a breach by Customer or others does not waive Wikisend.com's right to act with respect to subsequent or similar breaches. No action by Customer arising under this Agreement may be brought at any time more than twelve (12) months after the facts occurred upon which the cause of action arose.
Customer and Wikisend.com are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
Customer may not assign any of its rights, or delegate any of its duties, under this Agreement, and any attempted assignment will be null and void.
Operation of our Services may be interfered with by numerous factors outside of our control and we shall not be liable to you for any delay or failure in performance under this Agreement resulting directly or indirectly from causes beyond Wikisend.com's control.
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck, as narrowly as possible, and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
You represent and warrant to Wikisend.com that (a) you are not a competitor of Wikisend.com, (b) you shall keep publicly unannounced information and materials pertaining to Wikisend.com, pre-release software, testing or testing procedures strictly confidential and (c) you shall not use any information gained from access to the Wikisend.com Web site or use of the Wikisend.com Services to compete with Wikisend.com in its business.
Except for other agreements or terms appearing on the Web site, this Agreement set forth the entire understanding and agreement between us with respect to the subject matter hereof.