Terms of Service
Last Modified: January 22, 2019
Thank you for using DocSend!
PLEASE READ THESE TERMS OF SERVICE (“TERMS”) CAREFULLY.
THESE TERMS CONTAIN BINDING ARBITRATION, JURY TRIAL WAIVER, AND CLASS ACTION WAIVER PROVISIONS GOVERNING DISPUTES ARISING FROM YOUR USE OF THE SERVICE (DEFINED IN SECTION 2). THESE PROVISIONS AFFECT YOUR LEGAL RIGHTS.
1 Acceptance of Terms.
1.1 DocSend, Inc. (“DocSend,” “us,” “we” or “our”) provides a web-based Service (as defined in Section 2) to users who have DocSend accounts (“Customers”) and to users who do not have DocSend accounts (“Viewers”) through its web site located at https://www.docsend.com (the “Site”), subject to these Terms. Customers and Viewers may be referred to in these Terms as “you,” “your,” or “user,” as applicable. By accessing or using the Service, you accept these Terms, acknowledge that you have read and understand these Terms, and agree to be bound by these Terms. If you are entering into these Terms on behalf of a business, company, or other legal entity, you represent that you have the authority to bind such business or entity to these Terms, in which case the terms “you,” “your,” or “user” refer to such business or entity. If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and may not use the Service.
1.2 DocSend may change these Terms from time to time. You can review the most current version of these Terms at any time at https://www.docsend.com/terms-of-service/. The revised provisions will become effective once posted or on any effective date indicated in the posting, and you accept the revised provisions by accessing or using the Service after that date.
1.3 In order to use the Service, Customers must first register with us through our on-line registration process. As part of the registration process you will identify an administrative user name and password or otherwise authenticate yourself by following the authentication protocols provided by your organization for your account (“Account”).
1.4 As a Customer, you may invite additional users as allowed by your Service plan. In order to access and use the Service, each additional user must register with the Service as allowed by your Service plan.
1.5 For certain Service features or plans, Customers will be provided with an order form that references these Terms (“Order Form”). The Order Form may include additional terms that apply to the Service that is the subject of the Order Form (“Additional Terms”). By signing or electronically submitting an Order Form, or registering for the related Service, you agree to the Additional Terms and the Additional Terms become part of these Terms. If there is a conflict between these Terms and the Additional Terms, the Additional Terms will control. Your use of the Service may also be subject to additional policies, guidelines, or rules we post on the Service or make available to you.
2 Description of Service. The “Service” includes: (a) the Site; (b) the Site’s communication and information sharing services and related technologies, including the Site’s interactive features and features for communication with others; (c) other services we make available to you; and (d) all software (including the Software, as defined in Section 2), information, data, reports, files, logos, folders, text, images, sounds, videos, and other content and materials made available through any of the foregoing (collectively referred to as the “Content”). Any new features added to or augmenting the Service are also subject to these Terms.
3 General Conditions; Access; and Use of the Service.
3.1 You may access and use the Service only for lawful purposes. You will not (a) sublicense, resell, rent, lease, transfer, assign, time share, or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components; or (c) modify, adapt or hack the Service to, or otherwise attempt to, gain unauthorized access to the Service or its related systems or networks. You will comply with any codes of conduct, policies, or other notices DocSend provides you or publishes in connection with the Service, and you will promptly notify DocSend if you learn of a security breach related to the Service.
3.2 Any software that may be made available by DocSend in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. DocSend grants you a non-transferable, non-sublicensable, non-exclusive and revocable right and license to use the object code of any Software solely in connection with the Service, provided that you will not (and will not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. You agree not to access the Service by any means other than through the interface that is provided by DocSend for accessing the Service, unless otherwise specifically authorized by us in a separate written agreement signed by a DocSend authorized signatory. Any rights not expressly granted in these Terms are reserved and no license or right to use any trademark of DocSend or any third party is granted to you in connection with the Service.
3.3 You are solely responsible for all data, information, documents, records, feedback, suggestions, text, content and other materials that you upload, share, post, deliver, provide or otherwise transmit or store (collectively referred to as “upload(ing)” in these Terms) in connection with or relating to the Service (“Your Library”). There are many things that users may do with Your Library (for example, copy, modify, or re-upload it in whole or in part). Please consider carefully what you choose to upload. DocSend has no responsibility for what you upload. You agree that we cannot be liable for any dispute that arises between you and any other user.
3.4 For every email sent outside of your organization via the Service, you acknowledge and agree that DocSend will have the right to automatically add identifying information in accordance with our standard policies then in effect. You consent to sharing such information and any promotional or advertising materials that may be included.
3.5 All right, title, and interest in and to the Service, and its components, will remain with and belong exclusively to DocSend. Other than Your Library, all of the content on the Service, the trademarks, service marks, and logos contained on the Service (collectively, “Materials”), are owned by or licensed to us and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. We, or our licensees, reserve all rights not expressly granted in these Terms to the Site, Service, and the Materials. You agree that you will not circumvent, disable or otherwise interfere with security related features of the Service or features that: (a) prevent or restrict use or copying of any Materials; or (b) enforce limitations on use of Materials. These Terms do not grant you any right, title, or interest in the Service or the Materials. The Software and other technology we use to provide the Service are protected by the laws of both the United States and foreign countries. These Terms do not grant you any rights to use the DocSend trademarks, logos, domain names, or other brand features.
3.6 Please be aware that we may use any feedback you send to us in any form or any manner without any obligation to you, including any comments or suggestions about our product, offerings, Service or Site that you upload in our forums. By submitting a comment or feedback to us, you assign to us all of your right, title and interest in and to all such comments and feedback. In the event that such assignment is not valid, you agree and grant to DocSend a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other information provided by you relating to the Service.
3.7 By uploading Your Library on or through the Service, you grant DocSend a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish, or perform Your Library to provide the Service, enhance the Service, and develop and enhance new products, services and features. You remain the full owner and controller of Your Library. We do not claim any ownership to any of it. These Terms do not grant us any rights to Your Library or intellectual property except for the limited rights that are needed to provide the Service. We may use Your Content and other information you provide that has been de-identified, anonymized and aggregated with other de-identified, anonymized data (including from our other customers) for any of the following purposes: our internal research and development; development of tools, methodologies, algorithms and processes; machine learning; risk management; fraud prevention; enhancing our products, services and features; developing new products, services and features; and conducting and furthering our business.
3.8 Customers are responsible for maintaining the confidentiality of the authentication methods they use to access the Service, including their user name, password, and other authenticating information (collectively “Authentication Credentials”). You may not share your Authentication Credentials or, without our permission, give others access to your Account or transfer your Account to anyone else. You are responsible for any activity using your Account, whether or not you authorized that activity. You should immediately notify DocSend in writing of any unauthorized use of your Account by sending an email to [email protected] DocSend reserves the right to access your Account as necessary in order to provide the Service. Further, you agree that we may, but are not required to: (a) monitor the Service, the Content, or Your Library for violations of these Terms and for compliance with our policies; (b) refuse, restrict access to or the availability of, or remove or disable any Content, without prior notice to you, at any time for any reason (including upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all; (c) report to law enforcement authorities and/or take legal action against anyone who violates these Terms; or (d) manage the Service in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Service.
3.9 You, and not DocSend, are responsible for maintaining and protecting Your Library. You will take adequate measures to keep Your Library secure. DocSend will not be liable for any loss or corruption of Your Library, or for any costs or expenses associated with backing up or restoring any of Your Library. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection, and backup of Your Library, and that it is your sole responsibility to use a secure encrypted connection to communicate with the Service if you wish to protect your transmission of data or files to DocSend. DocSend will have no liability to you for any unauthorized access or use of any of Your Library, or any corruption, deletion, destruction or loss of any of Your Library.
3.10 You are responsible for retaining and storing Your Library in compliance with applicable law. If you are legally required to retain or store copies of Your Library, you must do so using your own facilities. DocSend may store, suspend access to, and erase Your Library as provided in Section 9.2, and we are not responsible for storing or retrieving Your Library on an ongoing basis or for ensuring that third parties receive Your Library content.
3.11 You will obtain and maintain any equipment or ancillary services needed to connect to, access, or otherwise use the Service, including modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You will be responsible for ensuring that the Equipment is compatible with the Service (and, to the extent applicable, the Software) and complies with DocSend’s policies. You will also be responsible for securing the Equipment, your Account, passwords and files, and for all uses of your Account or the Equipment with or without your knowledge or consent.
3.12 DocSend’s failure to exercise or enforce any right or provision of these Terms is not a waiver of that right or provision. You acknowledge that these Terms are a contract between you and DocSend, even though this contract is electronic and is not physically signed by you and DocSend, and it governs your use of the Service.
3.13 DocSend reserves the right to use your company name and logo for marketing or promotional purposes on DocSend’s website and in other communication with existing or potential DocSend customers.
3.14 DocSend may (but has no obligation to) provide technical support services, through email, the Service itself, or phone in accordance with our standard practice.
4 Additional Terms for DocSend Signature. DocSend Signature is a Service that facilitates the execution of electronic records between the parties to those records, using electronic signatures. Use of DocSend Signature is governed by these Terms, including this Section 4. By using DocSend Signature, you agree to the following:
4.1 By using DocSend Signature you agree to do business electronically and to sign electronic records by electronic signature.
For purposes of this Section 4:
“electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities;
“electronic record” means a contract or other record created, generated, sent, communicated, received, or stored by electronic means; and
“electronic signature” means an electronic sound, symbol, or process made available by us executed or adopted by you to sign an electronic record.
4.2 If you are using DocSend Signature on behalf of a business, company or other legal entity, you represent that you have the authority to bind the business or entity to the electronic record you send or accept via DocSend Signature.
4.3 You have exclusive control over and responsibility for the content, quality and format of any electronic record. Nothing in these Terms makes DocSend a party to any electronic record signed or shared via DocSend Signature.
4.4 You are bound by any electronic signature made on your behalf by any person via DocSend Signature. You acknowledge that the use of electronic signatures and electronic records is governed by foreign, federal and state laws and the laws of other jurisdictions. You agree that you are responsible for complying with all such laws.
4.5 Electronic signatures on certain types of electronic records may not be valid, enforceable, or have legal effect (e.g., wills or agreements concerning family law). You agree that you are solely responsible for determining whether electronic records signed via DocSend Signature are valid, enforceable, or have legal effect, and we have no such responsibility. We make no representations or warranties that electronic records signed via DocSend are valid, enforceable, or have legal effect.
4.6 DocSend Signature is designed for business transactions, not consumer transactions. Some consumer protection laws may impose special requirements for electronic signatures and electronic records in connection with consumer transactions. Consumer transactions generally involve individuals who obtain, through a transaction, products or services which are used primarily for personal, family, or household purposes. These requirements may include providing disclosures and paper copies of electronic records. DocSend Signature does not comply with any of these requirements and other legal requirements. You may not use DocSend Signature in connection with consumer transactions.
4.7 You are responsible for determining how long you are required to retain or store Your Library in compliance with any applicable law, including any electronic records you sign or share via DocSend Signature. As provided in Section 3.10, any electronic records must be stored using your own facilities, and DocSend is not responsible for continuing to store or retrieve any of your electronic records or for ensuring that third parties receive electronic records you sign or share via DocSend Signature.
5 Pricing and Payment. To the extent that any Service or any portion of a Service is made available for any fee, you will be required to select a payment plan and provide DocSend information regarding your credit card, debit card, bank account or other payment method. You represent and warrant to DocSend that such information is true and that you are authorized to use the payment method. You will promptly update your Account with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay DocSend the amount that is specified in the payment plan in accordance with the terms of such plan and these Terms. You now authorize DocSend to charge, debit or bill your payment method on a periodic basis in accordance with the terms of such payment plan until you terminate your Account and you fulfill all payment obligations you owe us, and you further agree to pay any fees and charges incurred. If your payment method is denied or charged back to DocSend or our third party payment processor, DocSend may resubmit the payment and immediately suspend or terminate your access to the Service until payment is made. If you dispute any fees or charges you must tell us within 15 days after the date that we charge you. DocSend may choose to bill through an invoice, in which case full payment is due when indicated on the invoice or as otherwise specified on the Order Form.
6 Subscription Services. Certain features of the Service may be purchased in advance (“Subscription Services”). DocSend will process your payment for Subscription Services via our third party payment processor, and you now authorize DocSend and our third party payment processor to charge, debit or bill your credit card, debit card, bank account or other payment method the applicable fees and charges, including fees covering the initial subscription term and any renewal subscription terms.
6.1 Subscription Renewal; Cancellation – Site Customers. Customers may purchase Subscription Services using the Site (“Site Customers”). For Site Customers, the subscription term begins on the date of purchase and continues for the chosen duration, unless the Account is terminated as permitted in Section 9.2. Your subscription will renew automatically for that same period unless you cancel by setting your account to not auto-renew within the Service or sending a cancellation request to [email protected] We reserve the right to change our prices for any renewal subscription.
6.2 Subscription Renewal; Cancellation – Order Form Customers. Customers may also purchase Subscription Services using an Order Form (“Order Form Customers”). For Order Form Customers, the subscription term begins on the date of purchase, unless another date is specified on the Order Form, and continues for the duration specified on the Order Form, unless the Account is terminated as permitted in Section 9.2. Your subscription will automatically renew for that same period unless you send a written notice of cancellation to [email protected] no less than 30 days prior to the expiration of a subscription term of less than one year, or no less than 60 days prior to the expiration of a subscription term of one year or more (the “Cancellation Notice Cut-off Date”). We reserve the right to change our prices for any renewal subscription. If DocSend does change prices for any renewal subscription, we will notify you no less than 30 days before your Cancellation Notice Cut-off Date.
7 Taxes. You are responsible for paying all applicable sales, use, value added, excise, withholding, or any other applicable taxes that may be imposed, based on your use of or access to the Service under these Terms (“Taxes”). You will pay, indemnify and hold DocSend harmless from any Taxes and any costs associated with their collection or withholding, including penalties and interest. If you are exempt from Taxes, you must provide DocSend with a valid tax exemption certificate authorized by the appropriate taxing authority. If DocSend has the legal obligation to pay or collect Taxes for which you are responsible under this Section 7, you agree that the appropriate amount will be invoiced to and paid by you.
8 Representations and Warranties.
8.1 You represent and warrant to DocSend that: (a) you have full power and authority to enter into these Terms, including, if you are using the Service on behalf of a business or entity, the authority to bind that business or entity to these Terms; (b) you are 18 years of age or older, have the power to form a contract with DocSend and are not barred under any applicable laws from doing so; (c) the information you submit is truthful, accurate and complete; (d) you will update your contact information if it changes, including, if you are using the Service on behalf of a business or entity, the contact information of that business or entity; (e) if you are using the Service on behalf of a business or entity, you agree to ensure that your business’ or entity’s users comply with these Terms and that your business or entity will be responsible for violations of these Terms by your users; (f) your use of the Service does not violate any applicable law or regulation; (g) you will comply with our rules for submitting Your Library to us or uploading Your Library to the Service, including Section 8.2 below; (h) you and your business or entity are solely responsible for your conduct; (i) you agree that we cannot be liable for any dispute that arises between you and any other user and that you and your business or entity will indemnify us from any action which may arise from your conduct; (j) the Service and related Software are proprietary to DocSend and/or its suppliers or licensors and are protected by copyrights, trademarks, service marks, patents and/or other proprietary rights and laws; and (k) unless otherwise expressly permitted in a prior writing signed by us, you will not assign, transfer, distribute, resell, lease or otherwise provide access to any third party to the Service.
8.2 When you submit Your Library to us, you represent and warrant that you: (a) own or have sufficient rights to upload Your Library on or through the Service; (b) will not copy, upload, download, or share Your Library unless you have the legal right to do so; (c) will not upload Content that violates our rights or any third party’s rights, including privacy, publicity, intellectual property (including copyrights) or contract rights; (d) have fully complied with any third-party licenses relating to Your Library, including paying all royalties, fees and any other monies relating to Content that you uploaded to the Service; (e) will not upload or submit Content that (i) is defamatory, damaging, disruptive, unlawful, inappropriate, offensive, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, violent, harassing, or otherwise objectionable; (ii) incites, encourages or threatens physical harm against another, including Content that promotes racism, bigotry, sexism, religious intolerance or harm against any group or individual; or (iii) contains material that solicits personal information from anyone under 13 or exploits anyone in a sexual, violent or unlawful manner; (f) will not use the Service for any unlawful or unauthorized purpose including, collecting user names and/or email addresses of other users by electronic or any other means for the purpose of sending unsolicited email or other electronic communications, or engaging in unauthorized framing of, or linking to, the Service without our prior express written consent signed by a DocSend authorized signatory; (g) will not upload or submit Content that constitutes, contains, installs or attempts to install or promotes spyware, malware or other computer code, whether on our or others’ computers or equipment, designated to enable you or others to gather information about or monitor the on-line or other activities of another party; (h) will not transmit chain letters, bulk or junk email or interfere with, disrupt, or create an undue burden on the Service or the networks or systems connected to this Service, including hacking into the Service, or using our system to send unsolicited or commercial emails, bulletins, comments or other communications; and (i) will not impersonate any other person or entity, sell or let others use your profile or password, provide false or misleading identification, payment or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity.
9.1 Termination – Viewers. A Viewer may terminate its use of the Service at any time by ceasing further use of the Service. DocSend may, in its sole discretion, terminate your use of the Service and deny you access to the Service for any reason, including for violating these Terms, or for no reason at all.
9.2 Termination – Customers.
9.2.1 General. You may terminate your Account at any time by sending a cancellation request to [email protected] or by following the cancellation procedures for Subscription Services provided in Section 6, as applicable (“Termination”). Termination of your Account will take effect after DocSend processes the cancellation. DocSend may, in its sole discretion, immediately terminate your Account and use of the Service if: (i) you fail to make timely payments of fees; (ii) you file for bankruptcy, are involved in any bankruptcy proceeding or are otherwise insolvent; (iii) you are not in compliance with applicable laws, including applicable export laws and regulations or applicable privacy or data protection laws; (iv) you breach any provision of these Terms; or (v) you are found to have falsified any information you provided us, including payment method information, (each an “Event of Termination”). For any Event of Termination or suspension of Service, no refund will be due of prepaid fees and you remain responsible for fees for the then-current term in effect to the date of termination.
9.2.2 Notwithstanding an Event of Termination, DocSend may terminate your Account and these Terms at any time by providing 10 days’ prior notice to the email address we have on file for your Account. DocSend reserves the right to modify, discontinue or suspend, temporarily or permanently, the Service (or any part thereof) without prior notice to you.
9.2.3 Effect of Termination.For a period of up to 30 days following Termination, we may decide in our sole discretion to permit you to retrieve Your Library from the Service. After that, we may delete Your Library from the Service and DocSend will have no obligation to continue to store or permit you to retrieve Your Library. Post-termination assistance from DocSend is subject to the mutual agreement of the parties, including fees and terms DocSend specifies for such assistance.
If DocSend terminates your Account without cause and you are a user of Subscription Services, we will refund the pro-rated, unearned portion of any amount that you have prepaid to DocSend for such Services if required by applicable law.
10 DISCLAIMER OF WARRANTIES. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by DocSend or by third-party providers, or because of other causes beyond our reasonable control.
10.1 YOU AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND DOCSEND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND EACH OF OUR LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND OTHER CONTRACTORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE OF THE SERVICE. YOU ACKNOWLEDGE THAT DOCSEND DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM DOCSEND OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
10.2 WE DO NOT REPRESENT OR IMPLY THAT WE ENDORSE ANY CONTENT OR ANY OTHER MATERIALS OR ITEMS MADE AVAILABLE ON OR LINKED TO BY THE SERVICE, OR THAT WE BELIEVE CONTENT OR ANY OTHER MATERIALS OR ITEMS ARE ACCURATE, USEFUL OR NON-HARMFUL. WE DO NOT GUARANTEE AND DO NOT PROMISE THAT THE SERVICE MAY BE LAWFULLY VIEWED OR THAT CONTENT MAY BE DOWNLOADED FROM THE SITE OUTSIDE OF THE UNITED STATES OF AMERICA. NO ADVICE OR INFORMATION, WHETHER VERBAL OR WRITTEN, OBTAINED BY YOU FROM US OR THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
10.3 WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF THE MATERIALS OR CONTENT; OR THE CONTENT OF ANY SITE OR ANY OTHER ITEMS OR MATERIALS ON THE SERVICE OR LINKED TO OR BY THE SERVICE. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT, CONTRIBUTIONS, OR MATERIALS; (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE; (C) ANY ILLEGAL OR UNAUTHORIZED ACCESS TO OR USE OF THE SITE, SERVICE OR SECURE SERVERS AND ALL PERSONAL INFORMATION STORED THERE; (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (F) ANY ERRORS OR OMISSIONS IN ANY CONTRIBUTIONS, CONTENT AND MATERIALS; OR (G) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT, CONTRIBUTIONS, OR MATERIALS UPLOADED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE.
11 LIMITATION OF LIABILITY.
11.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) WILL DOCSEND BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, WHETHER OR NOT DOCSEND HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE 3 MONTHS PRECEDING THE EVENT GIVING RISE to YOUR CLAIM or, IF NO FEES APPLY, $20 U.S. dollars. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
11.2 Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, DOCSEND’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
12 Indemnification. You will indemnify and hold DocSend harmless from and against any loss, liability, damage, penalty, fine, cost, fee, expense, claim, action or demand, including reasonable legal and accounting fees, arising or resulting from: (a) your breach of these Terms, including any breach of your representations and warranties set forth above; (b) Your Library; or (c) your other access, contribution to, use or misuse of DocSend Services. You agree to cooperate with any reasonable requests to assist DocSend’s defense of such claim, suit or demand.
13 U.S. Government Matters. You may not remove or export from the United States or allow the export or re-export of DocSend Services or anything related to DocSend Services in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, any other United States agency or authority, or any foreign agency or authority. As defined in Federal Acquisition Regulation (“FAR”) Section 2.101, the software and documentation installed by DocSend on your Equipment (if applicable) are “commercial items” and according to Defense Federal Acquisition Regulation (“DFAR”) Section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR Section 227.7202 and FAR Section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by these Terms and will be prohibited except to the extent expressly permitted by these Terms.
14 Assignment. You may not assign these Terms without the prior written consent of DocSend, but DocSend may assign or transfer these Terms, in whole or in part, without restriction.
15 Export Compliance. Each party must comply with all applicable local, state, national and foreign laws, rules and regulations, including the export laws and regulations of the United States and other applicable jurisdictions in providing and using DocSend Services. Without limiting the foregoing: (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (b) you must not permit users to access or use DocSend Services in violation of any U.S. export embargo, prohibition or restriction.
16.1 Any notice or communication required or permitted to be given under these Terms must be in writing, signed or authorized by the party giving notice, and may be: (a) delivered by hand, deposited with an overnight courier; (b) sent to you by email or facsimile; or (c) mailed by registered or certified mail, return receipt requested, postage prepaid, to the following:
(i) In your case, to the email address, mail address or facsimile contact information set forth within your Account or we have on file;
(ii) In the case of DocSend, to: DocSend, Inc., 351 California Street, Suite 1200, San Francisco, California, 94104, U.S.A., with an electronic copy to [email protected]
16.2 All notices under these Terms will be deemed to have been given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
17 Force Majeure. DocSend will not be liable or responsible for failure to perform any obligation under these Terms caused by an event beyond DocSend’s control, including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike, crime, and cyber-attack.
18 Mandatory Arbitration, Jury Trial Waiver, and Class Action Waiver.
18.1 You agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 18 is intended to be interpreted broadly and governs any and all disputes between us, including claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; claims that arose before these Terms; and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property as provided below.
18.2 Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action you will contact us at [email protected] and provide a brief, written description of the dispute and your contact information (including your user name, if your dispute relates to an Account). Except for intellectual property, you and DocSend agree to use reasonable efforts to settle any dispute, claim, question, or disagreement directly through consultation with DocSend, and good faith negotiations will be a condition to either party initiating a lawsuit or arbitration.
18.3 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of 30 days from the time informal dispute resolution is initiated under Section 18.2, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided below) subject to these Terms. Specifically, all claims arising out of or relating to these Terms, the parties’ relationship with each other, and/or your use of DocSend Services will be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 U.S. Dollars and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 U.S. Dollars, excluding any rules or procedures governing or permitting class actions.
18.4 Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration or the question of waiver by litigation conduct. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award will be written and will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
18.5 Filing a Demand. To start an arbitration, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, California 94111; and (c) send one copy of the Demand for Arbitration to us at: [email protected]
18.6 Fees and Costs. If your claim(s) total is less than US $5,000 U.S. Dollars, then: (a) you may choose whether your participation in the arbitration will be conducted on the basis of documents provided to the arbitrator, through a telephonic hearing or by an in-person hearing; (b) DocSend will reimburse your filing fees up to a maximum of US $1,500 U.S. Dollars unless the arbitrator determines that your claims are frivolous; and (c) DocSend will not seek attorney’s fees and costs, unless the arbitrator determines that your claims are frivolous. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
18.7 No Jury Trial. The parties understand that, absent this mandatory arbitration section, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
18.8 Venue. Arbitration will be initiated and take place in San Francisco, California, United States, and you and DocSend agree to submit to the personal jurisdiction of any federal or state court in San Francisco, California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
18.9 Class Action Waiver. The parties further agree that the arbitration will be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND DOCSEND AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above will be deemed null and void in their entirety and the parties will be deemed to have not agreed to arbitrate disputes.
18.10 Exception: Litigation of Intellectual Property. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in any state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).
19.1 If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable; and an enforceable term will be substituted reflecting our intent as closely as possible.
19.2 No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind DocSend in any respect whatsoever; instead, our relationship is that of independent contractors.
19.3 In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees.
19.4 These Terms create no third party beneficiary rights to the DocSend product or to any third party product made available through the Service.
19.5 Section headings are for ease of reference only.
20 Governing Law. These Terms will be governed by the law of the State of California, exclusive of its choice of law and conflicts of law provisions. Unless otherwise elected by DocSend in a particular instance, you expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts located in San Francisco County, California, for the purpose of resolving any dispute relating to your access to or use of the Service. The Convention for the International Sale of Goods will not apply.
22 Copyright. We will terminate the account and access rights of any copyright infringer in appropriate circumstances. If you are a copyright owner or the legal agent of a copyright owner, and you believe that any Content on the Service infringes upon your copyrights, you may submit a notification pursuant to our Digital Millennium Copyright Act Notice (https://www.docsend.com/dmca-notification/).
23 Entire Agreement; Survival.
23.1 Both parties agree that these Terms are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided.
23.2 The following will survive any termination of this Agreement: Sections 1, 3, 4.4, 4.5, 4.7, 5, 7, 8, 9.2.3, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, and 23; all indemnity provisions and all disclaimers and limitations of warranties and damages set forth in these Terms or otherwise existing at law all definitions used in the foregoing sections, regardless of where located; and all perpetual licenses granted under this Agreement that are not expressly terminated.