IMPORTANT - READ THE FOLLOWING TERMS AND CONDITIONS. By signing up for an O-File account or using the O-File services, you agree that you have read this User Agreement (the "Agreement") and agree to its terms and conditions. This Agreement governs the use of the O-File services provided by the Company to you as the User and any other Users under your account.
TERMS AND CONDITIONS
1. DESCRIPTION OF SERVICES
O-File, LLC (the "Company") provides Internet-based storage and retrieval services by providing the user ("You" or the "User") the ability to store, retrieve and share files via the Internet, including the World Wide Web (the "Web"), using the Company's O-File system ("O-File"). The O-File services offered by the Company are described and explained in detail on the O-File web site at www.O-File.com (the "Web Site"). To utilize the O-File services, a User must register for an account and sign up for one of the O-File service plans offered by the Company (the "Plans"). The Plans provide different amounts of storage and file transfer limits depending on the specific Plan selected by the User. A "Provisional Plan" is a trial plan that is free of charge for a limited period of time, and may be renewable as set forth in the Web Site. Other Plans ("Paid Plans") provide greater amounts of storage capacity and higher file transfer limits, depending on the Plan. The User should review the Web Site for more detailed information concerning the O-File Plans offered by the Company. "Uploads" are file transfers from the User's computer to the User's storage area on the O-File system. "Downloads" are file transfers from the User's storage area on the O-File system: (i) back to the User's computer (retrievals); or (ii) to other computers that are operated by people that the User has given the right to access the User's storage area (file sharing). The User may share some or all of the User's files with other people as explained on the Web Site. If the Web Site states that Uploads are "unlimited," then the User may transfer as many files as the User wishes to the O-File storage area allocated to the User, until the limit of that storage area under the User's Plan is reached. After the limit is reached, then the User will not be able to upload any more files unless some of the previously uploaded files are deleted, or the User upgrades to a Plan that gives the User more storage area. Downloads are limited by the O-File system to a certain amount per month, depending on the Plan chosen by the User. Some of the Paid Plans allow for a certain number of sub-account Users in addition to the primary User. References in this Agreement to a "User" refers to the primary User and each sub-account User, and all Users are subject to the terms and conditions of this Agreement. Each User must: (1) provide all equipment necessary to establish a connection to the Internet including a computer and modem (or other connection device); and (2) subscribe to an access service or otherwise obtain access to the Internet and pay any service fees charged by the User's Internet access service provider.
2. REGISTRATION INFORMATION AND CHARGES
To use the O-File services, the User agrees to: (a) provide accurate information about the User as prompted to do so when the User registers for an account or accesses an existing account as a sub-account User; and (b) update that information as required to keep it current and accurate. The registration information provided by the User during the registration process, and any updates provided by the User from time to time, is referred to as the "Registration Information." If any of the Registration Information provided by the User is inaccurate or false, the Company may terminate the User's right to access the O-File services. With the exception of a Provisional Plan account, the Company offers its O-File services for monthly or annual fees, which the User will pay to the Company by a credit card or via "PayPal." The fees applicable for the various O-File service plans are set forth on the Web Site. If the User uses a credit card to pay for the O-File services, then the User authorizes a recurring monthly or annual charge to the credit card in exchange for use of the O-File services in accordance with the terms of the Plan selected by the User, until the User's account is terminated. If the User uses PayPal to pay for the O-File services, then the User will arrange to cause PayPal to deliver the applicable fees to the Company on or before the date the fees are due. The User's use of the PayPal payment service is governed by the agreement between the User and PayPal, Inc. set forth at www.paypal.com. The User's payment by credit card is governed by the User's agreement between the User and the credit card company. The User must update the User's credit card information given to O-File to enable O-File to continue to use the User's credit card as a method of payment for the User's O-File account. The Company reserves the right to change the fees, and to institute new charges at any time, by posting the new terms on the Web Site. If the agreement between Company and the credit card company or PayPal requires any express notice to the User of any changes to the fees or any new charges, then the Company will give the required notice to the User via e-mail. The User agrees that the enrollment for the next service period under any Paid Plan is automatic, unless the User terminates the User's account by following the termination procedures set forth on the Web Site.
3. ACCOUNT AND PASSWORD
During the registration process, the User will define a User name and a password. The User must maintain the confidentiality of the User's name, password and other account information. The User is solely responsible for any and all activities that occur under the User's account. The User may change the User's password at any time by following instructions on the Web Site. The User must notify the Company of any unauthorized use or other breach in security of the User's account immediately upon learning of it. The Company is not obligated to monitor any activities that occur under the User's account.
5. NO INFORMATION ABOUT CHILDREN UNDER THE AGE OF 13
Our service is not intended to be used by children under the age of 13. In compliance with the Children's Online Privacy Protection Act of 1998, we do not knowingly collect information from children under the age of 13. Completion of forms on the Web Site, or use of a credit card, is a representation that you are 13 years old or older. Our Web Site is not directed to children or specifically designed or intended to attract anyone under the age of 13.
7. RESTRICTIONS ON THE USER'S CONDUCT
The User is solely responsible for the contents of the User's files, transmissions and file sharing through the O-File services. Use of the O-File services is subject to all applicable local, state, national and international laws and regulations. The User agrees:
(a) not to use the O-File services for any illegal purposes;
(b) not to use the O-File services to store, retrieve, transmit or view any file, data, image or program that contains:
(i) any illegal pictures, materials or information;
(ii) any harassing, libelous, abusive, threatening, harmful, vulgar, pornographic, obscene or otherwise objectionable material of any kind;
(iii) any material that could constitute, or encourages conduct that could constitute, a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation;
(iv) any software, binary code, or other material that violates the intellectual property rights of others; or
(v) any viruses, worms, "Trojan horses" or any other similar contaminating or destructive features;
(c) to comply with United States and other applicable laws regarding the exportation and re-exportation of any data or other materials from the United States or other jurisdictions through the O-File services;
(d) not to use the O-File services for any spamming, chain letters or other use that may disrupt the O-File services or the networks through which Users access and use the O-File services;
(e) to comply with all regulations, policies and procedures of networks through which Users access and use the O-File services;
(f) not to access or attempt to access any other account for which the User has no access authorization or otherwise interfere with another User's use and enjoyment of the O-File services; and
(g) not to resell the O-File services, without the express written consent of the Company.
The Company may, at its sole discretion, immediately terminate the User's access and authorization to use the O-File services if the User's conduct fails to conform with these terms and conditions. Although the Company has the right to view the contents of files stored in the User's O-File storage area to determine the User's compliance with the terms of this Agreement if the Company becomes aware of a possible violation by the User of the terms of this Agreement, the Company has no duty or obligation to monitor the User's activities or the contents of files stored in the User's O-File storage area.
8. SECURITY OF STORED FILES
The Company will endeavor to restrict access to the files the User stores in the User's account to persons accessing such files through the User's account name and password, and persons accessing such files through O-File's file sharing feature to the extent the User has enabled files to be accessed through the file sharing feature. However, no password-protected system of data storage and retrieval can be made entirely impenetrable. Accordingly, the User acknowledges that it may be possible for an unauthorized third party to access, view, copy, modify and distribute files the User stores in the User's account. The Company uses redundant storage technology. However, absolute preservation of data cannot be assured. The Company will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any files or data.
9. DISCLAIMER OF WARRANTIES
THE USER AGREES THAT USE OF THE O-FILE SERVICES IS AT THE USER'S SOLE RISK. THE O-FILE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY MAKES NO WARRANTY THAT THE O-FILE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE O-FILE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. THE COMPANY DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE O-FILE SERVICE, AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE O-FILE SERVICE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. STORING, DOWNLOADING AND SHARING FILES THROUGH THE O-FILE SERVICE IS DONE AT THE USER'S OWN DISCRETION AND RISK. THE USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO, AND ANY LOSS OF DATA FROM, THE USER'S COMPUTER SYSTEM OR ANY OTHER COMPUTER SYSTEM. THE COMPANY MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE O-FILE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE O-FILE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE USER FROM THE COMPANY OR THROUGH THE O-FILE SERVICE WILL CREATE ANY WARRANTY, EXPRESSED OR IMPLIED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
10. LIMITATION OF LIABILITY
THE COMPANY WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR INABILITY TO USE THE O-FILE SERVICES, FOR ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED, MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE O-FILE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF THE USER'S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH A JURISDICTION, THE COMPANY'S TOTAL LIABILITY, IF ANY, WILL BE LIMITED TO THE FEES ACTUALLY PAID BY THE USER FOR THE O-FILE SERVICE UNDER THIS AGREEMENT DURING THE PRECEDING 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
The User agrees to indemnify and hold the Company, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including attorney's fees, made by any third party due to or arising out of the User's use of the O-File services, the violation of this Agreement by the User, or the infringement by the User, or any other person through the use of the User's computer or the User's O-File account, of any intellectual property or other right of any person or entity.
12. MODIFICATION OR TERMINATION OF SERVICES
The Company may change the size of the storage area or the amount of downloads available under any of the Plans, or otherwise modify or discontinue any of the O-File services described in this Agreement or on the Web Site, by posting the new terms on the Web Site. The Company is not required to give any other notice to the User. Continued use of the O-File services by the User or any sub-account User will constitute agreement to any changes to the terms of this Agreement or any of the Plans. The Company will not be liable to the User or any third party if the Company modifies or discontinues any of the O-File services, other than paying a refund to the primary User of any pre-paid subscription fees after a permitted termination of the User's account, if applicable, to the extent the prepaid fees have not been applied to services provided before the termination and a refund would be owing pursuant to the terms of this Agreement and the applicable Plan.
The User may terminate the User's O-File account by following the termination process set forth on the Web Site. The User may terminate the User's O-File account with or without cause at any time, to be effective at the end of the current term of the Plan chosen by the User. The User may also terminate the User's O-File account effective immediately upon the completion by the User of the account termination process set forth on the Web Site, for a reason that is the Company's fault. For purposes of this Agreement, a reason is the "Company's fault" if the Company: (a) decreases the amount of storage area or amount of Downloads permitted under the Plan chosen by the User, and the decrease became effective before the end of the period of time for which the User prepaid; (b) increases the cost of the Plan chosen by the User, and the increase became effective before the end of the period of time for which the User prepaid; or (c) fails to provide O-File services to the User for a period in excess of ten (10) days (the "Cure Period") after the User notifies the Company that the User is unable to use the O-File services for a reason that is within the control of the Company, and the User terminated the User's account after the Cure Period and before the Company restored the operation of the O-File services. The Company may terminate the User's O-File account or the services provided to the User under this Agreement at any time, if the User violates the terms of this Agreement or disrupts the O-File Services as determined by the Company in the Company's sole discretion. The Company has the right to interrupt services to protect the O-File system and other users. The Company may also terminate the User's O-File account and services to be effective at the expiration of the current term of the User's Plan, for any reason. If the Company terminates a User's account, the Company will notify the User of the termination by delivering a notice to the User by one of the methods for delivery of notices described below. Other than any refunds the User may be entitled to receive as described below, the Company will not be liable to the User or any third party for any termination of the User's O-File account or related services. If the User objects to any changes the Company may make to the terms and conditions of this Agreement, or becomes dissatisfied with the O-File services in any way, the User's only recourse is to terminate the User's account and discontinue use of the O-File services. Upon any termination, the User must immediately cease using the O-File service, other than to retrieve the User's files. Within five (5) days after the date of termination, the User must remove all of the User's stored files from the Company's O-File servers. The Company may delete any stored files that are not removed by the User within five (5) days after termination of the User's O-File account. Thereafter, the Company will have no obligation to maintain any files stored in the User's account or to make those files available to the User or any third party. A User will be eligible for a partial refund of the service fees prepaid by the User if: (1) the User prepaid for an entire year of service; and (2) the amount prepaid exceeds $50. No refunds will be given for monthly payment Plans. Also, a refund will be given only if the User terminates the User's account, effective on a date before the end of the period for which the User prepaid, due to a reason that is the Company's fault (as defined above). If the termination is for any other reason, the User will not be eligible for a refund. No refunds will be given if the User is unable to use the O-File services because the User's computer is unable to access the Internet, or for any other reason that is not the Company's fault. To the extent the User is eligible for a refund after termination, refunds are calculated based on the subscription charges at the monthly rate for the Plan, even though the User prepaid for the Plan at the yearly rate. If the amount the User prepaid for the year exceeds the product of the monthly rate for the User's Plan multiplied by the number of months the User's account remained in effect before it was terminated, then the Company will refund the excess to the User (if the reason for the termination of the User's account entitles the User to a refund). If the product of the monthly rate for the User's Plan multiplied by the number of months the User's account remained in effect before the termination exceeds the amount prepaid by the User for the year, then no refund will be given. The Company will not issue any pro-rated refunds for the remaining portion of the term of a User's account if the User downgrades the User's Plan to a less expensive Plan. If the User downgrades to a less expensive Plan, the change will be effective at the end of the existing term of the Plan, and the anniversary date of the term will not change. The rate applicable to the less expensive Plan will be charged starting the first day of the renewal term. If a User chooses to upgrade to a more expensive Plan, then the rate applicable to the new Plan will be effective immediately, the term of the new Plan will be changed to start at the time of the upgrade, and the anniversary date of the term will also change. For Plans with yearly terms, the term of the new Plan will be subject to renewal one year after the User upgrades to the new Plan, and each year thereafter until the User's account is terminated. If the Plan allows for a monthly renewal and the User chooses the monthly renewal option, then the term of the new Plan will be renewable one month after the User upgrades to the new Plan, and each month thereafter until the User's account is terminated.
Any notice under this Agreement given by the Company to the User will be deemed to be properly given if sent: (1) by e-mail to the User's e-mail address as set forth in the Registration Information; (2) by a screen that appears at the beginning or during the User's use of the O-File service; (3) by a display about the changed information on the Web Site; or (4) at the Company's option, by a written communication mailed by first class U.S. mail to the User's address on record in the Registration Information [but the Company is not required to deliver any notice in any non-electronic form]. The User must maintain a working e-mail address and update Registration Information with the Company as necessary to be able to receive communications from the Company. Any notice under this Agreement given by the User to the Company may be sent by e-mail and will be deemed to be given if it is received by the Company at administrator@OFile-mail.com, with a copy to staff@OFile-mail.com
15. LINKS TO THIRD PARTY SITES
Advertisements of products or services provided by third parties may be shown on the Web Site or through the O-File service. Revenue to the Company from advertisements helps defray the expense of providing Provisional Plans, and helps the Company make Paid Plans more affordable. The Company does not endorse any sites on the Internet that are linked through the Company's Web Site by clicking on advertisements or otherwise. The Company is providing these links to the User only as a matter of convenience, and the Company is not responsible for any content, products or services on or available from such sites. If the User enters into correspondence with or participates in promotions of advertisers on the O-File Web Site or through the O-File system, or enters into any agreements with any such advertisers, then any such correspondence, promotions or agreements, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence, promotions or agreements, are solely between the User and the advertiser. The Company assumes no liability, obligation or responsibility for any part of any such correspondence, promotions or agreements.
16. PROPRIETARY RIGHTS
The User has no right, title or interest in or to the O-File services or any content on the Web Site, including but not limited to text, software, music, sound, photographs, video, graphics or other material on the Web Site. All such services and content are protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. The User may not copy, reproduce, or distribute such content or any derivative works created from such content, without express written authorization from the Company.
This Agreement will be enforced to its fullest extent permitted by applicable law. If for any reason any provision of this Agreement is held to be invalid or unenforceable under applicable law, then (a) such provision will be interpreted, construed or reformed to the extent reasonably required to make it valid, enforceable and consistent with the original intent underlying such provision; and (b) such invalidity or unenforceability will not affect any other provision of this Agreement.
18. MODIFICATIONS OF THIS AGREEMENT
The Company may amend the terms and conditions of this Agreement from time to time. Any changes to this Agreement will be effective as soon as they are posted on the Web Site, and the User's continued use of the O-File services after any changes will constitute the User's acceptance of the changes.
The User's right to use the O-File services is personal to the User, and the User will not assign any of the User's rights, obligations or interests in this Agreement or the User's account (but this is not to be construed to prohibit authorized sub-accounts for those Plans that allow sub-accounts). This Agreement is binding upon the parties, and is for the benefit of the parties and their respective successors and permitted assigns. The Company's failure to insist upon or enforce strict performance of any provision or right of this Agreement will not be construed as a waiver of any provision or right. This Agreement will be governed by the laws of the State of Texas, without regard to its conflict of laws rules. The provisions of the U.N. Convention on Contracts for the International Sale of Goods and any successor treaties will not apply. The User consents to the venue and exclusive jurisdiction of the state and federal courts located in Dallas, Texas, U.S.A. Any claim or cause of action arising under or otherwise occurring by reason of this Agreement must be brought by the filing of a petition within two (2) years and one (1) day after the claim or cause of action arises, or such claim or cause of action will be forever barred. This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes any prior understandings and agreements.
20. REVISION DATE
This Agreement was last revised on May 20, 2009.