Please read these Terms carefully before accessing or using the Website. By accessing or using any part of the Website, by clicking on the “submit” or “send email” or “upload” buttons, or by downloading or posting any User Files (defined below) from, or on, the Website or through the Services (defined below), you are indicating that you have read, understand, and agree to become bound by this Agreement, whether or not you have registered and created an account with BigSenders. If you do not agree to all of these Terms, then you may not access the Website or use any of the Services. If these Terms are considered an offer by BigSenders, acceptance is expressly limited to the terms and conditions set forth herein.
You represent and warrant that, if an individual, you are at least 18 years old and otherwise legally competent in all respects to, or, if an entity, you are a corporation, limited liability company, partnership, or other legal entity duly formed and in good standing, as applicable, and possesses all legal authority and power to accept and be bound by these Terms. If you accept or agree to these Terms on behalf of a company or other legal entity, “you” and “your” will refer and apply to that company or other legal entity. Additionally, you represent and warrant all information provided by you to BigSenders.com has been and is complete, accurate, and current, and that you will continue to provide complete, accurate and current information to BigSenders.com in connection with all registration or renewal processes and further agree to update all such information as necessary to maintain complete, accurate and current information. Although individuals seeking access to paid services offered through BigSenders.com must be at least 18 years of age and otherwise legally competent to accept and be legally bound by these Terms, a parent or legal guardian of a minor may obtain an account on the minor's behalf, and by doing so, consents to such minor's use of the Services. Subscribing parents and legal guardians each for herself or himself, as applicable, accept and agree to be legally bound by these Terms, and assume full responsibility and liability associated with any failure of compliance with these Terms in connection with said minor's use of any of the Services.
BigSenders reserves the right, at its sole discretion, to modify these Terms at any time and without prior notice. You may view the most current version of these Terms at https://www.bigsenders.com/terms.html. Any use of the Services by you after changes, modifications, additions or deletions to these Terms are posted on the Website shall constitute your acceptance to all such changes, additions, modifications or deletions.
If we modify these Terms in any manner, we will post the modification on the Website or within the BigSenders Application and will update the "Last Updated Date" at the top of these Terms. Any use of the Services by you after the modification of these Terms shall constitute your acceptance to all such modifications. If these Terms as modified are not acceptable to you, your only recourse is to cease using the Services and, if applicable, cancel your Account.
Notwithstanding BigSenders' right to alter these Terms without prior notice, BigSenders may, within its sole discretion and as a courtesy you, make an effort to provide you with 7 days advanced notice of any alteration of these Terms if it appears to BigSenders, in its sole discretion, that said alteration may materially and adversely impact your use of the Services.
1. File Share Services
BigSenders provides managed file sharing and transmission services which enable users to access, store, send, receive, edit, sync, and share, User Files via BigSenders’ proprietary platform (the "Services").
The Services include the Website, our software plug-ins, tools and applications, including any updates, new versions or new releases thereof (each a "BigSenders Application"), Share Services (defined below), and any other products and services offered by BigSenders via the Services.
a. Consent to Terms by Third Parties
The "File Share" service, which is a BigSenders Application, operates by effecting your request to make identified User Files or User Files residing within identified folders (each a "Shared User File") available to identified third parties. As to any Shared User File, you may authorize third party rights to
view and download, or
(view, or download.
To the extent that you grant to any third party the right to download a Shared User File, that third party will be required to agree to BigSenders’ Terms, and agree to accept access to that Shared User File as a condition to exercising those rights.
b. Consent to Access Computer for Syncing and Storage Purposes
You consent to our automatic accessing of your computer for purposes of syncing and storing User Files in connection with your use of our File Sync services, and the sharing of User Files with third parties designated by you in connection with your use of our File Share services. Specifically, you consent to BigSenders’
accessing any computer or device identified by you, and
storing and sharing your User Files with the means described above.
c. License to BigSenders
You hereby grant to BigSenders a license to
use, copy, modify, transmit, distribute, store and cache any User File that you choose to share, whether that User File resides on your computer or device, BigSenders’ servers or the computer or device of a third party designated by you through File Share, and
copy, transmit, publish, and distribute to others the User Files as you designate, in each case solely to provide the File Share Service to you.
d. Responsibility of Users
You acknowledge and agree that you should save and maintain a backup copy of any User File that you wish to retain in its original form.
You are solely responsible for maintaining and protecting all data and information that is stored, retrieved or otherwise processed by the Website, the Services, any BigSenders Application, or any User File. Without limiting the foregoing, you will be responsible for all costs and expenses that you or others may incur with respect to backing up, and restoring and/or recreating any data and information that is lost or corrupted as a result of your use of the Website, the Services, any BigSenders Application, or any User File.
2. Modification or Termination of the Services
BigSenders reserves the right, at its sole discretion, to modify, discontinue or terminate the Services. Additionally, BigSenders reserves the right to terminate free accounts at any time, with or without notice. BigSenders may choose to delete or reduce any or all of your User Files and previous versions or prior backups of User Files, if
you have not logged into your free account for at least 60 days,
BigSenders determines, in its sole discretion, that you have violated these Terms,
your BigSenders account is otherwise terminated by you or BigSenders, or
BigSenders discontinues or terminates the Service.
3. Registration and Accounts
In order to access and use certain features of the Services, you must register to create a BigSenders account ("Account") or register by consenting to the creation of such an account for you (e.g., when you access the Services through one of our partner’s platforms). Once you have established an Account, you will be a "Registered User.”
a. Age Requirement
Except as otherwise expressly provided herein, Registered Users who are individuals must be 18 years old or older to purchase access to the Services as further described below under the Section titled "Payment.” By purchasing access to the Services an individual represents and warrants that he or she is 18 years old or older.
b. Responsibility of User to Maintain Contact Information
When you register, you will be required to provide certain information, and you will establish a username and password. You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete. BigSenders will have no liability for failure to deliver notices that result from inaccurate Account information or otherwise. You authorize us, directly or through third parties, to make any inquiries we consider necessary or appropriate to verify your Account information, which may include providing your information to such third parties. BigSenders reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current, or incomplete.
c. Use of Password
You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your password, whether or not you have authorized such activities or actions. You will immediately notify BigSenders of any unauthorized use of your password.
Access to or use of certain Services requires payment of a subscription or access fee. By selecting a Service via your Account or otherwise, you agree to pay all account charges at the prices then in effect in addition to all applicable taxes and other fees that accrue in relation to use of the Services by you or other persons (including your agents) using your Account, and you expressly authorize BigSenders to charge the payment method you provide during registration, or as updated by you thereafter, (your "Payment Method") for the Services you have chosen. Except as set forth under "Termination" below, all fees are non-refundable. All fees and applicable taxes, if any, are payable in United States dollars.
For certain premium accounts, BigSenders may offer the choice of payment via your Payment Method or corporate account invoicing. For accounts setup on an invoice basis, you agree to pay BigSenders all amounts stated in such invoices within thirty (30) days of receipt. For more information about the Services and available payment methods, refer to the Account Features Page located at https://www.bigsenders.com/plans.html.
b. Recurring Billing
Most subscription plans to the Services consist of an initial period, for which there is a one-time charge, followed by recurring periodic charges as agreed to by you (e.g., annual or monthly). By entering into these Terms, you acknowledge that your subscription has an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. We may also periodically authorize your Payment Method in anticipation of subscription fees or related charges.
Subscriptions to the Services will be automatically extended for successive renewal periods for the same duration as the subscription term originally selected by you, at the then-current, non-promotional subscription rate. You may cancel your subscription at any time. Please see the Section below titled "Termination" for further information.
d. Change in Amount Authorized
If the amount to be charged to your Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and BigSenders shall provide, notice of the amount to be charged and the date of the charge at least ten (10) days before the scheduled date of the transaction.
e. Free Trials
BigSenders may offer free trial subscriptions during which you may use the Services for the time period specified in the promotional offer ("Trial Period"). Free trial subscriptions may not be combined with any other offer and except as may otherwise be provided in the promotional offer, free trial subscriptions are only available to new customers that have not previously been Registered Users. You will not receive a notice from us that your free Trial Period has ended or that the paying portion of your subscription has begun. You may cancel your subscription at any time. Please see the Section below titled "Termination" for further information. Unless you cancel your subscription prior to the conclusion of the Trial Period, your Payment Method will be charged the applicable recurring subscription fee until you cancel your subscription. If you cancel prior to the end of the Trial Period and are inadvertently charged for a subscription, please contact support@BigSenders.com to have the charges reversed.
a. By You
You may cancel your Account, or change, or cancel your subscription to the Services at any time through your Account settings. If you cancel your subscription within three (3) business days after the beginning of the monthly or annual term, your subscription will not be renewed after your then current term expires. For annual subscriptions, if you cancel outside of three (3) business days but within fourteen (14) days of the beginning of the annual term, BigSenders will convert your Account to a free account and refund to you 90% of the subscription fees paid for the then-current term. If you cancel a monthly subscription more than three (3) business days after the beginning of the monthly term, or you cancel an annual account after the first fourteen (14) days of the term, you won’t be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period and BigSenders will not refund any fees paid by you for that period. Instead, your Account will remain active for the remainder of the term for which you paid and will then be converted to a free account. Your non-termination or continued use of the Services reaffirms that BigSenders is authorized to charge your Payment Method. BigSenders may submit those charges for payment and you will be responsible for such charges. This does not waive BigSenders’ right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially subscribed to the Services.
In the event that you issue a chargeback or reversal of charges without first cancelling your account in the manner set forth herein, you will be responsible for a $50.00 billing service fee.
b. By BigSenders
BigSenders reserves the right to discontinue the Services or to change the Services at any time and without prior notice to you, except that BigSenders will provide notice of such discontinuation to corporate account holders. In the event of such discontinuation by BigSenders, BigSenders will refund any fees paid by you, prorated proportionally to the amount of time remaining in the then-current subscription period. For monthly subscriptions, that period is one month, and for annual subscriptions, that period is one year.
If you breach any of these Terms, BigSenders will have the right to suspend or disable your Account, or terminate these Terms immediately at its sole discretion and without prior notice to you. In the event of your breach of these Terms, BigSenders will not be required to refund any fees paid by you and you will remain liable for all amounts due hereunder.
6. Shared and Public Folders
When you place a User File in your folder, that User File becomes available to those users to whom you grant access and you hereby grant to those users and the public a non-exclusive, non-commercial, worldwide, royalty-free, sub-licensable, perpetual and irrevocable right and license to use and exploit that User File. You should not place any User File in your folder unless you want users to be able to use that User File. By placing a User File in your shared folder, you agree and acknowledge that BigSenders has no responsibility or obligation to monitor or notify you of any non-compliance related to the license you have granted hereunder, or any rights or licenses you may choose to grant to other users under separate agreements, if any, and that BigSenders has no obligation to enforce or police, or aid you in enforcing or policing, the terms of the license(s) or permission(s) you have chosen to grant.
In order to allow the highest traffic levels compatible with the overall performance of the Services, BigSenders may set bandwidth quotas for shared folders. Your account may be suspended and access to any shared folder denied or restricted, without notice and in BigSenders’ sole discretion, in the event that traffic to or from your shared folders exceeds the bandwidth limits. The parameters of the quotas may be changed without prior notice in order to ensure proper functioning of the Services for the greater BigSenders user community.
7. Ownership of User Files
As used herein "User Files" means the content, files and folders (including any information or data therein) users may access, store, send, receive, edit, share, or otherwise organize or manage, via use of the Services, including User Content; and "User Content" means the text, information or other content posted or submitted by users on the Website.
BigSenders does not claim any ownership rights in any User Files that you make available through the Services. However, by making User Files available through the Services, you grant BigSenders the nonexclusive, worldwide, transferable right, on a royalty-free basis, with a right to sublicense this right only to third parties assisting BigSenders in providing the Services to use, copy, distribute and process User Files through the Services on your behalf and on behalf of your customers for the purposes of providing you with the Services and administering your requests, including without limitation, facilitating the secure storage, transfer, and delivery of such User Files.
You represent and warrant that you own or have the necessary licenses, rights, consents and permissions to grant the licenses that both your shared folders require, as described above. Please note that removing User Files from your folders does not revoke the license granted to those individuals who previously accessed those files.
User Files may be protected by intellectual property rights which are owned by the BigSenders user making that User File available via a shared folder. You may not modify, rent, lease, loan, sell, distribute or create derivative works based on the content(s) (either in whole or in part) of another user’s Shared User File unless you have been specifically authorized to do so in a separate agreement with the rightful owner of that User File.
8. Responsibility for User Files
You acknowledge and agree that BigSenders may establish revised practices and policies concerning access to and use of the Services, including without limitation, the maximum size of the User Files that a user may access and use via the Services as contemplated herein, the maximum number of days that User Files will be stored by the Services, the maximum number of times a user may access the Services in a given period of time, and the maximum number of recipients to which a user may send a User File.
You acknowledge and agree that BigSenders will not be responsible for any failure of the Services to store User Files, for the deletion of User Files stored on the Services, or for the corruption of or loss of any data, information or content contained in User Files. You have sole responsibility for all User Files that you upload, store, access and transmit via the Services. Accordingly, you represent and warrant that:
you either are the sole and exclusive owner of all User Files that you make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant BigSenders the rights in such User Files, as contemplated under these Terms; and
neither the User Files nor your uploading, storing, accessing or transmittal of the User Files, or BigSenders’ use of the User Files on, through or by means of the Services, will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
9. BigSenders’ Copyright Policy
You will not use the Services to transmit, route, or provide connections to, or store any material that infringes any copyrights or otherwise violates or promotes the violation of the intellectual property rights of any third party. BigSenders has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be infringing the rights of copyright holders. Please see the BigSenders Copyright Policy for further information.
BigSenders reserves the right, in its sole discretion, at any time and without prior notice, to remove or disable access to any User Files that it believes to be in violation of these Terms or otherwise harmful to the Services.
10. Proprietary Rights
As used herein, "BigSenders Content" means all text, graphics, images, audio, video, information or other materials made available by BigSenders through the Services and including the intellectual property identified in Section 11, but not including any User Files. As between you and BigSenders, all right, title, and interest in and to the Services and BigSenders Content is and will remain the exclusive property of BigSenders and its licensors, even if BigSenders incorporates any Feedback into subsequent versions of the Services or otherwise uses such Feedback. The Services and BigSenders’ Content are protected by copyright, trademark, and other laws of both the United States and foreign countries. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or BigSenders Content. Except as expressly permitted in these Terms, you may not reproduce, modify, or prepare derivative works based upon, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise exploit the Services or BigSenders Content. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by BigSenders or its licensors, except for the licenses and rights expressly granted in these Terms.
BigSenders, the BigSenders logo, and all other BigSenders trademarks, service marks, product names, and trade names of BigSenders appearing on the Services are owned by BigSenders. All other trademarks, service marks, product names, and logos appearing on the Services are the property of their respective owners. You may not use or display any trademark, service mark, product name, trade name, or logo appearing on the Services without the owner’s prior written consent.
12. General Prohibitions
As a condition to your use of the Services, you agree not to:
Upload, store, access or transmit any User File:
that you do not have the lawful right to copy, transmit, distribute, and display (including any User Files that would violate any confidentiality or fiduciary obligations that you might have with respect to the User Files);
for which you do not have the consent or permission of each identifiable person in the User Files to use the name, voice, signature, photograph, or likeness of each such person (to the extent each is implicated by the User Files);
that infringes or misappropriates the intellectual property rights or violates the privacy rights of any third party (including without limitation, copyright, trademark, patent, trade secret, or other intellectual property right, moral right, or right of publicity);
that is false or misleading;
that is defamatory;
that is obscene, pornographic, or offensive;
that promotes bigotry, racism, hatred, or harm against any individual or group; or
that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
Access, tamper with, or use any non-public areas of the Services or BigSenders’ computer systems, or the technical delivery systems of BigSenders’ providers;
Attempt to probe, scan, or test the vulnerability of the Services, or any related system, or network, or breach any security or authentication measures used in connection with the Services and such systems and networks;
Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Services;
Harm or threaten to harm other users in any way, or interfere with, or attempt to interfere with, the access of any user, host or network, including without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
Send unsolicited email, junk mail, spam, chain letters, promotions, or advertisements for products or services;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
BigSenders will have the right to investigate and prosecute violations of any of the above, including without limitation, possible infringement of any intellectual property rights and possible security breaches to the fullest extent of the law. BigSenders may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that, although BigSenders has no obligation to monitor your access to or use of the Services, it has the right to do so for the purposes of operating the Services, to ensure your compliance with these Terms, or to comply with applicable law, or the order or other requirement of a court, administrative agency, or other governmental body.
BigSenders reserves the right at all times to disclose, in its sole discretion, any User Files as necessary to
satisfy any law, regulation, or governmental request, or
reduce or prevent what BigSenders considers to be, in its sole discretion, a serious or imminent threat to your health or safety, or the health or safety of another.
In appropriate circumstances, BigSenders may in its discretion terminate the accounts and/or delete the User Files of users who are, or are believed to be or are charged with, infringing or violating the intellectual property rights of third parties, any applicable law or regulation, or otherwise in violation of the General Prohibitions listed above.
13. BigSenders Application License
a. License Grant
Subject to your compliance with the terms and conditions of these Terms, BigSenders grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to download and install a copy of each BigSenders Application onto one or more mobile devices or computers that you own or control and run such copies of the BigSenders Application solely for your own personal use (which personal use may include sharing User Files with third parties who have also accepted these Terms, including the license terms set forth herein). BigSenders reserves all rights in each BigSenders Application not expressly granted to you in these Terms.
Except as expressly specified in these Terms, you may not: (i) copy, modify or distribute any BigSenders Application for any purpose; (ii) transfer, sublicense, lease, lend, rent or otherwise distribute any BigSenders Application to any third party; (iii) decompile, reverse-engineer, disassemble, or create derivative works of any BigSenders Application; (iv) make the functionality of any BigSenders Application available to multiple users through any means; or (v) use any BigSenders Application in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms.
c. Updates and Upgrades; No Obligation.
BigSenders is not obligated to maintain or support any BigSenders Application, or to provide you with updates, upgrades or services related thereto. You acknowledge that BigSenders may from time to time in its sole discretion issue updates or upgrades to any BigSenders Application, and may automatically update or upgrade the version of any BigSenders Application that you are using on your mobile device or computer. You consent to such automatic updating or upgrading, and agree that the terms and conditions of these Terms will apply to all such updates or upgrades.
d. Term and Termination.
The license to each BigSenders Application granted under these Terms remains in effect for a period of 75 years, unless earlier terminated by you or BigSenders in accordance with this provision. You may terminate the license at any time by destroying all copies of the BigSenders Application in your possession or control. Without limiting any other terms of these Terms, the license will automatically terminate without notice from BigSenders if you breach any terms of these Terms. Upon any termination of these Terms, you must cease all use of the BigSenders Application and promptly delete and destroy all copies, full or partial, of the BigSenders Application.
e. Proprietary Rights.
The copy of each BigSenders Application is licensed, not sold, to you. You agree that BigSenders and its licensors own all right, title and interest in and to the BigSenders Application, including all intellectual property rights therein, and that BigSenders retains ownership of all copies of the BigSenders Applications even after installation on your mobile device or computer. Each BigSenders Application is protected by United States copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the BigSenders Application as delivered to you.
f. U.S. Government End Users.
Each BigSenders Application and related documentation are "commercial items" as that term is defined in FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation," respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If a BigSenders Application and related documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the BigSenders Application and related documentation will be only those specified in these Terms.
g. Export Control.
You may not use, export, re-export, import, or transfer any BigSenders Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the BigSenders Application, and any other applicable laws. In particular, but without limitation, the BigSenders Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, or the U.S. Department of Commerce’s Denied Person’s List or Entity List. Furthermore, by using the BigSenders Application you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
h. BigSenders Application from Apple App Store
Additional terms apply to any BigSenders Application accessed through or downloaded from the Apple App Store. Those terms may are found in BigSenders Terms for Apple Applications.
If you elect to provide us with feedback, comments and suggestions for improvements to the Services (whether written, verbal or in any other format or manner) ("Feedback") we will be free to use and exploit the same in any manner without restriction of any kind and without any need to compensate you. You acknowledge and agree that all Feedback will be the sole and exclusive property of BigSenders and that you hereby irrevocably assign to BigSenders, and agree to irrevocably assign to BigSenders all of your right, title, and interest in and to all Feedback, including, without limitation, all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At BigSenders’ request and expense, you will execute documents and take such further acts as BigSenders may reasonably requests to assist BigSenders in acquiring, perfecting, and maintaining its intellectual property rights and other legal protections for the Feedback.
The Services may contain links to third party websites. You acknowledge and agree that BigSenders is not responsible or liable for:
the availability or accuracy of such websites; or
the content, products, or services on, or available from, such websites.
Links to such websites do not imply any endorsement by BigSenders of such websites or the content, products, or services available from such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites.
16. Scheduled Maintenance
BigSenders performs system maintenance on a regular basis to ensure high-quality of service. BigSenders uses commercially reasonable efforts to ensure that the Services are available for use during this time. BigSenders will use reasonable efforts to perform all maintenance during its pre-scheduled maintenance windows. Currently, the maintenance window is between 10:00 p.m. Friday and 2:00 a.m. Sunday, U.S. Mountain Standard Time (07:00-11:00 GMT).
You will defend, indemnify, and hold harmless BigSenders, its officers, directors, affiliates, employees and agents, from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of, or in any way connected with your access to or use of the Services, any BigSenders Application, or your violation of these Terms, including, without limitation, third party claims that User Files submitted to the Services by you infringe or misappropriate the intellectual property rights, privacy rights, publicity rights, or moral rights of a third party.
18. LIMITATION OF LIABILITY
IN NO EVENT WILL BIGSENDERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS, AND DAMAGE TO HARDWARE OR OTHER SOFTWARE) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, THE USE OR PERFORMANCE OF ANY BIGSENDERS APPLICATION, OR FROM THE USE OF, OR INABILITY TO USE THE SERVICES OR ANY USER FILES SENT THROUGH, STORED BY, OR DOWNLOADED FROM THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BIGSENDERS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF ANY LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL BIGSENDERS’ AGGREGATE LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES EXCEED THE LESSER OF (A) ONE HUNDRED U.S. DOLLARS ($100); AND (B) THE FEES PAID TO BIGSENDERS BY YOU IN THE TWELVE (12) MONTHS LEADING UP TO THE EVENT GIVING RISE TO SUCH A CLAIM.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BIGSENDERS AND YOU.
19. Controlling Law and Jurisdiction
These Terms will be governed by the laws of the State of Utah without regard to its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods will not apply. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms will be the state and federal courts located in Utah County, Utah, and you waive any objection to jurisdiction and venue in such courts.
20. Entire Agreement
These Terms represent the entire and exclusive agreement between BigSenders and you regarding the Services, the BigSenders Applications and these Terms supersede and replace any prior agreements between BigSenders and you regarding the Services and BigSenders Content. Certain areas of the Website (and your access to or use of certain Services or BigSenders Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Services or BigSenders Content, the latter terms and conditions shall take precedence with respect to your use of or access to that area of the Services or BigSenders Content.
You consent to the use of:
electronic means to complete these Terms and to deliver any notices or other communications permitted or required hereunder (including notices with respect to actual or alleged breaches of security); and
electronic records to store information related to these Terms or your use of the Services. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given: (a) by BigSenders via email (in each case to the email address that you provide); or (b) by posting to the Website or through the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
You will not assign any rights granted to you or delegate any of your duties hereunder. Any attempt to do so is void and of no effect. BigSenders may freely assign these Terms and the rights granted hereunder without restriction. Nothing in these Terms shall constitute a partnership or joint venture between you and BigSenders. In the event that any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of these Terms will remain in full force and effect. The failure of BigSenders to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. The headings and captions are for convenience only and are not to be used in the interpretation of these Terms.
23. DISCLAIMER OF WARRANTIES
THE SERVICES, BIGSENDERS APPLICATIONS, AND BIGSENDERS CONTENT ARE PROVIDED "AS-IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. BIGSENDERS EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
BIGSENDERS MAKES NO WARRANTY THAT THE SERVICES, THE BIGSENDERS APPLICATIONS OR BIGSENDERS CONTENT WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS, OR WILL OPERATE AT ANY PARTICULAR SPEED. YOUR USE OF THE SERVICES, BIGSENDERS APPLICATIONS AND BIGSENDERS CONTENT IS AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT BIGSENDERS WILL NOT BE RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR THE COMPUTER SYSTEM OF ANY THIRD PARTY RESULTING FROM USE OF THE SERVICES, BIGSENDERS CONTENT OR ANY BIGSENDERS APPLICATION.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BIGSENDERS OR THROUGH SERVICES, BIGSENDERS CONTENT OR ANY BIGSENDERS APPLICATION, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.