1. LICENSE.

1.1 Grant of License.

Subject to Licensee’s compliance with the terms and conditions of these Terms, Company hereby grants to Licensee a limited, nonexclusive, nontransferable, revocable license, during the term hereof, to use the Service in accordance with the documentation describing its functionality.

1.2 License Fees.

It is understood that during this license term, the Service may be offered by Company on either a free or “for pay” basis, depending on your requirements and the limits of the free Service set by Company from time to time. [For multi-user accounts, you should contact the Company’s sales department for additional information and appropriate subscription documentation.] Should you register for a paid subscription, you agree to pay the license fee(s) publicized by the Company at the time you enter into the Agreement and on any renewal thereof, along with all applicable taxes that may be imposed from time to time.

If Company is unable to charge your payment method (i.e. due to the expiration of your credit card), you are still obliged to pay Company the amounts to which you are committed under this Agreement. All fees are non-refundable, and are to be paid in US Dollars unless another currency was specified when you made your purchase. You are solely responsible for any fees imposed by your credit card company, including exchange rate or foreign transaction fees.

1.3 License Restrictions.

Licensee acknowledges that the Service contains trade secrets of Company and its licensors, and, in order to protect such trade secrets and other interests that Company and its licensors may have in the Service, Licensee agrees not to reverse engineer, decompile or disassemble the Service or authorize a third party to do any of the foregoing. Licensee will not attempt to modify the Service. Licensee will not distribute sell, sublicense or otherwise transfer the Service. Additionally, Licensee agrees not to:

• Share its account with any other person or entity;
• Not to create multiple, free accounts under different or fake identities or otherwise that enables Licensee, intentionally or otherwise, to exceed the usage limits associated with the Service;
• Upload, store, access or transmit any file: (i) that Licensee does not have the lawful right to copy, transmit, distribute, and display (including any files that would violate any confidentiality or fiduciary obligations that you might have with respect to the files); (ii) for which you do not have the consent or permission of each identifiable person in the files to use the name, voice, signature, photograph, or likeness of each such person (to the extent each is implicated by the files); (iii) 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); (iv) that is false or misleading; (v) that is defamatory; (vi) that is obscene, pornographic, or offensive; (vii) that promotes bigotry, racism, hatred, or harm against any individual or group; or (viii) 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 Service or Company’s computer systems, or the technical delivery systems of Company or its providers;
• Attempt to probe, scan, or test the vulnerability of the Service, or any related system, or network, or breach any security or authentication measures used in connection with the Service and such systems and networks;
• Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Service;
• Send unsolicited email, junk mail, spam, chain letters, promotions or advertisements for products or service; or
• 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 Service.

1.4 Limited Rights.

Licensee’s rights in the Service will be limited to those expressly granted in Section 1.1. Company and its licensors reserve all rights and licenses in and to the Service not expressly granted to Licensee under these Terms.

1.5 Changes to Service.

Company may identify opportunities for making changes to the Service, including which features, benefits or restrictions apply, and the business model under which the Service is being offered. Company reserves the right to make such changes periodically as it deems to be in the best interests of the Service. Should Company determine that a change is needed that reduces the functionality of the Service in a material manner, Company will issue a notification summarizing the effects of such a change.

Also, if Licensee has established an account with Company and subsequently makes changes to the account, it may affect the Service provided. For example, if Licensee cancels a paid subscription and continues to use a free account, certain features or benefits may no longer be available to Licensee.

If Licensee’s account fails to meet the requirements of the Service, Company may take all reasonable remedial measures at its sole discretion, including the suspension of access to or deletion of files and/or Spaces. Additionally, Company may suspend or terminate Licensee’s free access to the Service or paid subscription if Licensee’s usage, in Company’s reasonable opinion, does not comply with the features, benefits and restrictions that are applicable at that time or causes interference with the normal functioning of the Service. By way of example only, Licensee’s abuse of Company’s cloud storage limitations shall be cause for suspension or termination of access to the Service.

1.6 Third Party Applications and Software.

Company may provide software applications that Licensee can use with the Service. Subject to Licensee’s compliance with these Terms, Company grants Licensee a limited non-exclusive, non-transferable, non-sublicensable license to download and install a copy of each application on a mobile device or computer that it owns or controls, and to run such copy of the application solely for its own personal use with the Service. Additional terms may apply to any application accessed through or downloaded from third parties, Licensee shall be solely responsible for complying therewith and Company disavows any liability pertaining to such third party applications, including the performance thereof. Additionally, in conjunction with providing a Service, Company may utilize third party open source software, for which Company has procured appropriate licenses.

1.7 Licensee Permissions.

Some of the features of the Service are designed to upload, download and synchronize files between Licensee’s computer or other devices (such as Licensee’s phone or tablet) and Company’s servers. Depending on the features used, this can happen automatically. By using the Services, Licensee gives Company permission to access Licensee’s computer and other devices for the purpose of providing the Services to Licensee. Furthermore, to the extent necessary for Company to provide the Service (and only as necessary), you give us and our third party service providers permission to take all necessary actions in processing files, including modifications and annotations thereto, uploaded in connection with Licensee’s usage of the Service.

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2. FEEDBACK.

Licensee may periodically provide Company with feedback. All feedback, comments, and suggestions for improvements that Licensee provides to Company hereunder are referred to collectively as “Licensee Feedback.” Licensee hereby irrevocably transfers and assigns to Company and agrees to irrevocably assign and transfer to Company all of Licensee’s right, title, and interest in and to all Licensee Feedback, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights (collectively, “Intellectual Property Rights”) therein.

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3. OWNERSHIP.

Licensee acknowledges and agrees that, as between the parties, Company owns all right, title, and interest in and to the Service, including all Intellectual Property Rights therein, even if Company incorporates any Licensee Feedback into subsequent versions of the Service. Licensee will not earn or acquire any rights or licenses in the Service or in any Company Intellectual Property Rights on account of this Agreement or Licensee’s performance under this Agreement. Licensee will not use or disclose any Licensee Feedback to any other entity other than Company.

Company acknowledges and agrees that, as between the parties, Licensee owns all right, title and interest in and to the content it uploads to a Service, including Licensee files.

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4. COPYRIGHT.

Company respects copyright law and expects its users to do the same. Our policy is, in appropriate circumstances, to terminate accounts of users who repeatedly infringe the rights of copyright holders. Company reserves the right, in its sole discretion, at any time and without prior notice, to remove or disable access to any files that we believe to be in violation of these Terms or otherwise harmful. You should also read our Copyright Policy, incorporated herein by reference.

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5. WARRANTY AND DISCLAIMERS.

5.1 Warranty.

Company warrants that (i) it has all rights and permits to offer the Service, and ii) the Service will function substantially in conformance with Company documentation describing its functionality.

5.2 Warranty Disclaimers.

Except as expressly set forth herein, Licensee acknowledges that the Service is being provided “AS IS.” COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

5.3 Licensee Data.

Company shall utilize industry standard techniques to fully secure its systems and infrastructure utilized in providing the Service in order to protect the data and information stored thereon from third party intrusions (the “Hightail Security Commitment”). Except in the event of a failure to meet the Hightail Security Commitment, Licensee is solely responsible for maintaining and protecting all data and information that is stored, retrieved or otherwise processed by the Service, the Hightail website, any Hightail software application, or any Licensee file. Without limiting the foregoing, Licensee will be responsible for all costs and expenses that Licensee 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 Licensee’s use of the Service, the Hightail website, any Hightail software application, or any Licensee file. Licensee acknowledges and agrees that while Company will make commercially reasonable efforts to maintain files uploaded to the Service for the duration of each subscription, the Service is not intended as a file storage repository, and thus except in the event of Licensee’s wilful misconduct, Licensee shall not be responsible for any failure of the Service to store a file, for the deletion of a file stored on the Service, or for the corruption of or loss of any data, information or content contained in a file.

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6. LIMITATION ON LIABILITY.

IN NO EVENT WILL COMPANY BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE SERVICE OR FOR ANY ERROR OR DEFECT IN THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN THE EVENT OF ANY DIRECT DAMAGES OR IF THE ABOVE TERMS ARE FOUND TO BE CONTRARY TO THE LAWS OF ANY APPLICABLE JURISDICTION, THE COMPANY’S MAXIMUM LIABILITY VIS-A-VIS EACH LICENSEE IS LIMITED TO THE GREATER OF A) THE AMOUNT PAID BY LICENSEE FOR THE SERVICE IN THE 12 MONTH PERIOD PRIOR TO THE DATE THE LICENSEE’S CLAIM AROSE AND B) US$250.00.

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7. TERM AND TERMINATION.

7.1 Term and Automatic Renewal Term.

The term of the Service and this Agreement shall be determined based on the subscription purchased by Licensee. A free subscription shall not have a predefined term, and Company reserves the right to terminate it at any time; Company will endeavor to provide advance notice of termination of a free subscription, though it is not contractually obliged to do so. All paid Service subscriptions will automatically renew for additional subscription period(s) equal in time to the original subscription at the then current Company price and subject to these Terms, unless either party gives the other party notice of non-renewal at least 30 days prior to the end of the relevant subscription period (for a quarterly or annual subscription) or 10 days prior to the end of a monthly subscription.

7.2 Termination.

With respect to free subscriptions, either party may terminate the Agreement and Company’s provisioning of the Service at any time, with or without cause. With respect to paid subscriptions, either party may terminate these Terms and any related order for cause upon 21 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period.

7.3 Effect of Termination.

Upon any termination or expiration of the Agreement and/or the Service: (a) the rights and licenses granted to Licensee hereunder will automatically terminate. Should Company be forced to proceed with a collections action as a result of a breach of Licensee’s obligation to pay its license fee(s), Company shall be entitled to recover its costs of collection, including reasonable attorneys fees.

7.4 Survival.

The provisions of Sections 1.2 (only in so far as relating to license fees generated prior to termination), 2, 3, 5, 6, 7.3, 7.4 and 8 will survive any termination or expiration of the Agreement.

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8. GENERAL PROVISIONS.

8.1 Assignment.

Licensee may not assign its rights to use the Service or this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Company. Any attempted assignment without such consent will be null and of no effect. Company shall be entitled to assign the Agreement and/or the Service to a third party successor in interest to Company.

8.2 Governing Law.

This Agreement will be governed by and construed in accordance with the laws of the State of California, USA (excluding its body of law controlling conflicts of law). The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.

8.3 Severability.

If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect.

8.4 Waiver.

The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default.

8.5 Notices.

All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed facsimile transmission, by email to a contact email provided by a party, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. All communications will be sent to the Hightail address set forth above or to such other address as may be specified by either party to the other in accordance with this Section or, in the case of Licensee, as specified by Licensee either during the registration process or during usage of the Service.

8.6 Entire Agreement.

The Agreement constitutes the entire and exclusive agreement between the parties pertaining to the subject matter hereof, and supersedes any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. These Terms may be modified by Company from time to time, and for paid subscriptions, Company shall provide advance written notice to Licensee either via a posting on Company’s website or through Licensee’s account. For paid subscriptions, the new terms shall come into force only upon the beginning of a renewal term, and for free subscriptions, the new terms shall be enforceable immediately. Should a free subscription Licensee not agree with the amended terms, it should immediately cease usage of the Service, and should a paid subscription Licensee not agree with the amended terms, it has the right to terminate the Agreement at the end of its then current term (i.e. before a renewal term commences), in accordance with the termination provisions set forth above. Licensee’s continued usage of the Service following the date the amended terms come into force shall be evidence of Licensee’s agreement to the amended terms (and the amended terms thereafter shall become the “Terms,” as used herein).

1. Usage Rights and Restrictions; Changes

1.1 Grant of Usage Rights

Subject to Subscriber’s compliance with the terms and conditions of the Agreement, Hightail hereby grants to Subscriber a limited, nonexclusive, nontransferable, revocable right, during the term hereof, to use the Services in accordance with the Hightail generated documentation describing the associated functionality. Subscriber’s subscription will allow use of the Services by a limited number of Subscribers’ authorized employees and consultants (“Authorized Users”) on an individual basis. Subscriber agrees not to i) allow anyone to use the Services other than the Authorized Users designated by Subscriber, and ii) to only enable individual Authorized Users access to the Services and not create group (i.e. distribution) lists as Authorized User(s). The maximum number of Authorized Users under Subscriber’s subscription is as indicated in the Agreement. If Subscriber wishes to designate Authorized Users in excess of its current maximum number of Authorized Users, Subscriber must purchase an additional subscription permitting such greater number of Authorized Users, for an additional fee. All access and use of the Services by Subscriber’s Authorized Users shall be deemed to be access and use by Subscriber for purposes of this Agreement, and Subscriber is fully responsible for the actions of its Authorized Users.

1.2 Account and Passwords

In order to use at least some of the Services, Subscriber must register and create a Hightail account. A Hightail account will be created for Subscriber’s appointed administrator as part of Hightail’s account provisioning process. Using available tools, the appointed administrator will be able to provision the use of the Service by Authorized Users. The administrator will identify an Authorized User via a name and an email address. In creating its account, Subscriber agrees to provide accurate, current, and complete information. Subscriber is responsible for safeguarding the passwords that Authorized Users use to access the Services. Subscriber agrees not to disclose any such passwords to any third party. Subscriber agrees to take sole responsibility for any activities or actions under such passwords, whether or not Subscriber has authorized such activities or actions. Subscriber will immediately notify Hightail of any unauthorized use of any such passwords. Subscriber is responsible for keeping its account information current and accurate; Hightail will have no liability for failure to deliver notices that result from inaccurate account information or otherwise.

1.3 Usage Restrictions

Subscriber acknowledges that the Services contain trade secrets of Hightail and its licensors, and, in order to protect such trade secrets and other interests that Hightail and its licensors may have in the Services, Subscriber agrees not to reverse engineer, decompile or disassemble the Services or authorize a third party to do any of the foregoing. Subscriber will not attempt to modify the Services. Subscriber will not distribute sell, sublicense or otherwise transfer the Services. Additionally, Subscriber agrees not to:

• Share its account with any other person or entity except for Authorized Users;
• Upload, store, access, modify or transmit any file: (i) that Subscriber does not have the lawful right to copy, transmit, modify, distribute, and display (including any files that would violate any confidentiality or fiduciary obligations that Subscriber might have with respect to the files); (ii) for which Subscriber does not have the consent or permission of each identifiable person in the files to use the name, voice, signature, photograph, or likeness of each such person (to the extent included in the files); (iii) 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); (iv) that is false or misleading; (v) that is defamatory; (vi) that is obscene, pornographic, or offensive; (vii) that promotes bigotry, racism, hatred, or harm against any individual or group; or (viii) 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 Hightail’s computer systems, or the technical delivery systems of Hightail or its 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; or
• Harm or threaten to harm other users or third parties 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 or other users/third parties.

1.4 Limited Rights

Subscriber’s rights in the Services will be limited to those expressly granted in Section 1.1. Hightail and its licensors reserve all rights and licenses in and to the Services not expressly granted to Subscriber under these Terms.

1.5 Subscriber Permissions

Some of the features of the Services are designed to share, upload, download and synchronize files between Subscriber’s computer or other devices (such as Subscriber’s cell phone) and Hightail’s servers. Depending on the features used, this can happen automatically. By using the Services, Subscriber gives Hightail permission to access Subscriber’s computer and other devices for the purpose of providing the Services to Subscriber. Furthermore, to the extent necessary for Hightail to provide the Services (and only as necessary), Subscriber grants Hightail and its third party service providers permission to take all necessary actions in processing files, including modifications and annotations thereto, uploaded to the Services or sent in connection with Subscriber’s usage of the Services.

1.6 Changes to Services

Hightail may identify opportunities for making changes to the Services, including which features, benefits or restrictions apply, and the business model under which the Services are being offered. Hightail reserves the right to make such changes periodically as it deems to be in the best interests of the Services. Should Hightail determine that a change is needed that reduces the functionality of the Services in a material manner, Hightail will issue a notification summarizing the effects of such a change.

Also, if Subscriber has established an account with Hightail and subsequently makes changes to the account, it may affect the Services provided. For example, if Subscriber chooses not to renew a paid subscription and continues to use a free account, certain features or benefits may no longer be available to Subscriber.

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2. Fees

It is understood that during the usage term, Subscriber agrees to pay the service fee(s) set forth in the Agreement. Subscriber shall be obliged to pay all applicable taxes that may be imposed from time to time on the Services (except those based on the net income of Hightail for which Hightail is legally responsible).

All fees are non-refundable, and are to be paid in US Dollars unless another currency was specified by Hightail at the time of purchase. Subscriber is solely responsible for any fees imposed by its credit card company, including exchange rate or foreign transaction fees.

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3. Feedback

Subscriber may periodically provide Hightail with feedback from time to time. All feedback, comments, and suggestions for improvements that Subscriber provides to Hightail hereunder are referred to collectively as “Subscriber Feedback”. Subscriber hereby irrevocably transfers and assigns to Hightail all of Subscriber’s right, title, and interest in and to all Subscriber Feedback, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights (collectively, “Intellectual Property Rights”) therein.

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4. Ownership

Subscriber acknowledges and agrees that, as between the parties, Hightail owns all right, title, and interest in and to the Services, including all Intellectual Property Rights therein, even if Hightail incorporates any Subscriber Feedback into subsequent versions of the Services. Subscriber will not earn or acquire any rights or licenses in the Services or in any Hightail Intellectual Property Rights on account of this Agreement or Subscriber’s performance under this Agreement. Subscriber will not use or disclose any Subscriber Feedback to any other entity other than Hightail.

Furthermore, as between the parties, Subscriber owns all right, title and interest in and to the files, data and other information Subscriber and/or its Authorized Users make available through the Services.

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5. Copyright

Hightail respects copyright law and expects its users to do the same. Hightail’s policy is, in appropriate circumstances, to terminate accounts of users who repeatedly infringe the rights of copyright holders. Hightail reserves the right, in its sole discretion, at any time and without prior notice, to remove or disable access to any files or an account that it reasonably believes to be in violation of these Terms or otherwise harmful.

In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website, Hightail will respond expeditiously to claims of copyright infringement committed using the Services that are reported to the Hightail Designated Copyright Agent identified in Hightail’s Copyright Policy. Hightail’s Copyright Policy is incorporated herein by reference and includes additional information on Hightail’s commitments regarding copyrighted material.

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6. Warranty/Disclaimers and Service Availability

6.1 Warranty

Hightail warrants that (i) it has all rights and permits to offer the Services, and ii) the Services will function substantially in conformance with Hightail documentation describing their functionality.

6.2 Warranty Disclaimers

EXCEPT AS EXPRESSLY SET FORTH HEREIN, SUBSCRIBER ACKNOWLEDGES THAT THE SERVICES ARE BEING PROVIDED “AS IS.” HIGHTAIL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FURTHERMORE, THE SERVICES MAY CONTAIN LINKS TO THIRD-PARTY WEBSITES. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT HIGHTAIL IS NOT RESPONSIBLE OR LIABLE FOR: (I) THE AVAILABILITY OR ACCURACY OF SUCH WEBSITES; OR (II) THE CONTENT, PRODUCTS, OR SERVICES ON OR AVAILABLE FROM SUCH WEBSITES. LINKS TO SUCH WEBSITES DO NOT IMPLY ANY ENDORSEMENT BY HIGHTAIL OF SUCH WEBSITES OR THE CONTENT, PRODUCTS, OR SERVICES AVAILABLE FROM SUCH WEBSITES. SUBSCRIBER ACKNOWLEDGES SOLE RESPONSIBILITY FOR AND ASSUMES ALL RISK ARISING FROM ITS USE OF ANY SUCH WEBSITES.

6.3 Service Availability

Hightail’s goal is for the Services to be available 24 hours a day, seven days a week; however it is possible that on occasion the Services may be unavailable to permit maintenance or other development activity to take place, or due to unanticipated force majeure events (as more fully described below). If, for any reason it becomes necessary for Hightail to interrupt the Services for longer periods than Hightail would normally expect, Hightail will use reasonable endeavors to publish in advance details of such activity on its website.

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7. Confidentiality and Security

7.1 Confidentiality

Unless the relevant party has the prior written consent of the other or unless required to do so by law:

1. Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
2. Each party’s obligations under this clause will survive termination of this Agreement.
3. The provisions of clauses 7.1.a and 7.1.b shall not apply to any information which:
   1. is or becomes public knowledge other than by a breach of this clause;
   2. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

• is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or

1. is independently developed without access to or usage of the Confidential Information as shown by the written records of the party relying on this provision.
2. As used above, "Confidential Information" includes all information of a proprietary or confidential nature exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Services and business terms of this Agreement.

7.2 Security

Hightail shall utilize industry standard techniques to fully secure its systems and infrastructure utilized in providing the Services in order to protect the data and information stored thereon from third party intrusions (the “Hightail Security Commitment”). Except in the event of a failure to meet the Hightail Security Commitment, Subscriber is solely responsible for maintaining and protecting all files, data and information that are stored, retrieved, sent or otherwise processed by the Services, the Hightail website, and any Hightail software application. Without limiting the foregoing, Subscriber will be responsible for all costs and expenses that Subscriber or others may incur with respect to backing up, and restoring and/or recreating any file, data and information that is lost or corrupted as a result of Subscriber’s use of the Services, the Hightail website, and any Hightail software application. Subscriber acknowledges and agrees that while Hightail will make commercially reasonable efforts to maintain files uploaded to the Services for earlier of i. the duration of each subscription or ii. the end of a pre-designated expiration date, the Services are not intended as a file storage repository; thus except in the event of Hightail’s willful misconduct or failure to adhere to the Hightail Security Commitment, Hightail shall not be responsible for any failure of the Services to store a file, for the deletion of a file stored on the Services, or for the corruption of or loss of any data, information or content contained in a file.

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8. Indemnity

Provided a Subscriber is current with payment of fees to Hightail, Hightail will defend, indemnify, and hold harmless Subscriber, 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 third party claims that the Services infringe or misappropriate the intellectual property rights of a third party.

Subscriber will defend, indemnify, and hold harmless hightail, 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 Subscriber’s violation of these terms, including without limitation third party claims that user files submitted to the Services by Subscriber or its Authorized Users infringe or misappropriate the intellectual property rights, privacy rights, publicity rights, or moral rights of a third party.

The indemnified party shall (a) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, and (b) allow the indemnifying party solely to control the defense of any claim, suit or proceeding. The indemnifying party shall not enter in to any settlement that imposes liability or obligations on the indemnified party without obtaining the indemnified party’s prior written consent. Hightail’s indemnification obligation will not apply, however, to the extent a claim is based upon the use of the Services in combination with other products, services, processes, or other items not provided by Hightail. If the Services or Hightail applications become, or in Hightail’s opinion are likely to become the subject of an infringement claim, Hightail may at its option obtain for Subscriber the right to continue using the Services or applications, or modify the Services or applications in order to avoid the claim.

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9. Limitation on Liability

IN NO EVENT WILL HIGHTAIL BE LIABLE TO SUBSCRIBER OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE SERVICES OR FOR ANY ERROR OR DEFECT IN THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT HIGHTAIL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN THE EVENT OF ANY DIRECT DAMAGES OR IF THE ABOVE TERMS ARE FOUND TO BE CONTRARY TO THE LAWS OF ANY APPLICABLE JURISDICTION, HIGHTAIL’S MAXIMUM LIABILITY VIS-A-VIS EACH SUBSCRIBER IS LIMITED TO THE GREATER OF A) THE AMOUNT PAID BY SUBSCRIBER FOR THE SERVICES IN THE 12 MONTH PERIOD PRIOR TO THE DATE THE SUBSCRIBER’S CLAIM AROSE AND B) US$10,000.00.

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10. Term and Termination

10.1 Term and Automatic Renewal Term

The term of this Agreement, and the resulting provision of Services, shall be determined based on the subscription purchased by Subscriber. A Service subscription will automatically renew for additional subscription period(s) equal in time to the original subscription at the greater of i. the price in effect under this Agreement for the immediately preceding term, and ii. the then current Hightail price, unless either party gives the other party written notice of non-renewal at least 30 days prior to the end of the relevant subscription period. These Terms shall continue to govern during any renewal subscription period.

10.2 Termination and Suspension

Either party may terminate the Agreement for cause upon 21 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. Additionally, Hightail may suspend or terminate Subscriber’s access to the Services if Subscriber’s usage, in Hightail’s reasonable opinion, does not comply with the features, benefits and restrictions of the Services that are applicable at that time. Provided circumstances allow, Hightail shall give advance written notice of 7 business days of such suspension or termination and an opportunity for Subscriber to cure the act(s) of misuse.

10.3 Effect of Termination

Upon any termination or expiration of the Agreement and/or the Services: (a) the rights and licenses granted to Subscriber hereunder will automatically terminate. Should Hightail be forced to proceed with a collections action as a result of a breach of Subscriber’s obligation to pay its service fee(s), in addition to any other rights hereunder or at law, Hightail shall be entitled to recover its costs of collection, including reasonable attorney’s fees.

10.4 Survival

The provisions of Sections 2 (only in so far as relating to service fees generated prior to termination), 3, 4, 6.2, 9, 10.3, 10.4 and 11 (except 11.2) will survive any termination or expiration of the Agreement.

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11. General Provisions

11.1 Assignment

Subscriber may not assign its rights to use the Services or this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Hightail. Any attempted assignment without such consent will be null and of no effect. Hightail shall be entitled to assign the Agreement and/or the Services to a third party successor in interest to Hightail.

11.2 Use of Name

Subscriber agrees that Hightail may identify Subscriber as a Subscriber or user of the Services on Hightail’s website, in client lists, in press releases, and in any other promotional materials that Hightail may publish or distribute. Hightail shall conform such usage to the reasonable trademark usage guidelines that Subscriber has notified Hightail of in writing in advance.

11.3 Governing Law and Jurisdiction

This Agreement will be governed by and construed in accordance with the laws of the State of California, USA (excluding its body of law controlling conflicts of law). The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.

11.4 Severability

If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect.

11.5 Waiver

The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default.

11.6 Notices

All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed facsimile transmission, by email to a contact email provided by a party, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in the Agreement or to such other address as may be specified by either party to the other in accordance with this Section or, in the case of Subscriber, as specified by Subscriber either during the registration process or during usage of the Services.

11.7 Force Majeure

Neither party will be responsible for failure of performance (not including an obligation to pay any fees owing) due to causes beyond its control. Such causes include (without limitation) accidents, industry-wide labor disputes, actions of any government agency, industry-wide shortage of materials, acts of terrorism, the stability or availability of the Internet or a portion thereof, floods, storms, earthquakes or other acts of god.

11.8 Entire Agreement

The Agreement constitutes the entire and exclusive agreement between the parties pertaining to the subject matter hereof, and supersedes any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. These Terms may be modified by Hightail from time to time. Hightail shall provide advance written notice to Subscriber of such modifications either via a posting on Hightail’s website or through Subscriber’s account, and the new terms shall come into force only upon the beginning of a renewal term. Should a Subscriber not agree with the amended terms, it has the right to terminate the Agreement at the end of its then current term (i.e. before a renewal term commences), in accordance with the termination provisions set forth above. Subscriber’s continued usage of the Services following the date the amended terms come into force shall be evidence of Subscriber’s agreement to the amended terms (and the amended terms thereafter shall become the “Terms,” as used herein).

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1. A few definitions

Account: You set up an Account in order to use our Services.

Non-Identifying Information: All information other than Personal Information that Hightail users provide or that we collect.

Personal Information: Information about Hightail’s users that can be used to contact or identify them.

Services: All services, software and information provided by Hightail, including all Hightail online services and the Hightail website (www.hightail.com), as well as our mobile and client apps.

User Files: The digital files that you and others may create, upload, download, store, or send using our Services.

We/Our/Us/Hightail: Refers to Hightail, Inc. (formerly YouSendIt, Inc.) and/or affiliates thereof.

You/Your: Refers to you, or the company or entity you represent.

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2. Certification

Hightail has received TRUSTe’s Privacy Seal signifying that this privacy statement and our practices have been reviewed for compliance with the TRUSTe program viewable on the validation page available by clicking the TRUSTe seal.

The TRUSTe program covers only information that is collected through www.hightail.com, hightail.zendesk.com, spaces.hightail.com and our mobile applications and does not cover information that may be collected through downloadable software.

If you have questions or complaints regarding our privacy policy or practices, please contact us at [email protected]. If you have an unresolved privacy or data use concern that we have not addressed satisfactorily, please contact TRUSTe at https://feedback-form.truste.com/watchdog/ request.

Hightail’s privacy practices described in this Statement comply with the APEC Cross Border Privacy Rules System and has received TRUSTe’s APEC Privacy Certification seal. For more information on APEC Cross Border Privacy Rules System, please visit

http://www.apec.org/Groups/Committee-on-Trade-and-Investment/~/media/Files/Groups/ECSG/CBPR/CBPR-PoliciesRulesGuidelines.ashx

Hightail also complies with the U.S. – E.U. Safe Harbor framework and the U.S. - Swiss Safe Harbor framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal data from European Union member countries and Switzerland. Hightail has certified that it adheres to the Safe Harbor Privacy Principles of notice, choice, onward transfer, security, data integrity, access, and enforcement.

To learn more about the Safe Harbor program, and to view Hightail’s certification, please visit http://www.export.gov/safeharbor/.

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3. Information collected by Hightail

Our main goals in collecting and processing information are to provide and improve the Services, to administer your subscription and to provide excellent user experiences. Below are the types and categories of information that we collect. Hightail does not share information about you with third parties except as provided in this Privacy Policy.

Information provided by you

When you register to use our Services, we ask for Personal Information. Personal Information may include, but is not limited to, name, phone number, credit card or other billing information, email address and postal addresses. All other information that you provide or that we collect is Non-Identifying Information.

We do not treat the names of User Files and Folders as Personal Information, so we recommend that you do not include any confidential or Personal Information in the names of User Files or Folders.

Identity theft and the practice currently known as "phishing" are of great concern to Hightail. We do not and will not, at any time, request your credit card information, your account ID, login password, or national identification numbers in a non-secure or unsolicited e-mail or telephone communication.

Automatic Information

When you use our Services, either online or using our client apps, whether as a registered Account holder or a non-registered user just browsing, we automatically receive and record information about this use either directly or through third party tracking utility providers.

This may include information such as your computer’s or device’s IP address or ID, your browser type, operating system version, language settings, which locally installed Hightail applications you use (if any) and how you use them, the web page you were visiting immediately prior to visiting our website, pages of our website that you visited, the time spent on those pages, information you searched for on our website, access times and dates, and other statistics.

We do not ask you for, access or track any location based information from your device. If we wish to do so in the future to enhance our Services, we will specifically ask your permission.

Email

As a Hightail Account holder, you may send a User File to, or share a User File with, recipients identified by valid email addresses that you provide. Hightail forwards or sends email or other notifications to those recipients. These email addresses and notifications may be stored by Hightail for your future use and as part of transaction information we keep relating to User Files.

When you use Hightail mobile apps or other client software, we may access your local device contacts or other web-based contacts you permit us to access for the sole purpose of allowing you to select recipients to whom you wish to send or share a User File.

If you have been added to a user’s Hightail address book and no longer wish to have your information used you may contact us at [email protected].

User postings and testimonials on our website

Hightail users can post comments or messages to the Hightail website, such as on our blog and community forum, which may be available to the public. We recommend that you guard your anonymity and sensitive information and we encourage you to think carefully about what information about yourself you disclose in your comments or messages. To request removal of such comments and message, contact Customer Support at [email protected]. In some cases, we may not be able to remove them, in which case we will let you know we are unable to do so.

We post Hightail user testimonials on our website, which may contain Personal Information such as the user’s name. We obtain user consent prior to posting of any such testimonial. If you wish to request the removal of your testimonial you may contact us at [email protected].

Cookies and other technologies

Like many websites, we use cookies, web beacons, pixel tags or similar means to collect information. These technologies allow us to personalize and improve your experience on our website, to record your preferences, and to save your ID and password for future visits to our website.

A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. Web beacons and pixel tags are electronic images, often a single pixel, that are ordinarily not visible to users and may be associated with cookies on a user’s hard drive. You can instruct your browser, by changing its options, to stop accepting cookies or to prompt you before accepting cookies from the websites you visit. If you do not accept cookies, however, you may not be able to use all portions of our website or all the functionality of our other Services.

Mobile and desktop app

When you download and use Hightail mobile apps, we automatically collect information on the type of device you use, operating system version, and the device identifier (or “UDID”). Hightail mobile apps and other software you install on your devices store registration and session information in encrypted files locally on the device where the application is installed. This behavior is similar to cookies but is specific to the device. To remove these data files, you can uninstall the application.

We use mobile analytics software to allow us to better understand the functionality of our mobile software on your phone. This software may sendrecord information such as how often you push notifications from time-to-time in order to update you about anyuse the application, the events or promotions that we may be running. If you no longer wish to receive these types of communications, you may turn them off at the device oroccur within the application level. To ensure you receive proper notifications, we will need to collect certain information about your device such as operating system, aggregated usage, performance data, and user identificationfrom where the application was downloaded. We do not link the information. you submit within the mobile application.

Social connectors

You can log in to our site using sign-in services such as Facebook Connect or other OpenID providers. These services will authenticate your identity and provide you the option to share certain personal information with us such as your name and email address to pre-populate our sign up form. Services like Facebook Connect give you the option to post information about your activities on this Web site to your profile page to share with others within your network.

You can import contacts from services like Gmail and Yahoo Mail also using OpenID social connectors. Your imported contact lists will only be used to make future communications to those individuals more convenient.

Our policy toward children

Our Services are not aimed at people under 18 and we do not knowingly collect Personal Information from children under 13. If a parent or guardian becomes aware that his or her child has provided us with Personal Information, he or she should contact us at [email protected]. If we become aware that a child under 13 has provided us with Personal Information, we will delete such information from our files.

Information collected by third parties

We employ a variety of third party partners such as advertising, tracking utilities, affiliates and service providers that may use cookies or similar means described above to collect Non-Identifying Information about your activities on this website and other websites to help us optimize your experience, improve our services and provide you targeted advertising on other websites you visit based upon your interests. Hightail does not have access to or control of any cookies that third parties may store in your browser and this Privacy Policy does not apply to the use of cookies or similar means by third parties. We do not tie the information gathered to our Customers’ or Users’ personally identifiable information.

We partner with third party ad networks to manage our advertising on other web sites. Our ad network partners use cookies or similar means to collect Non-Identifying Information about your activities on our website and other websites to provide you targeted advertising on other websites you visit based upon your interests. If you wish to not have this information used for the purpose of serving you targeted ads, you may opt-out of the use of your information for such purposes by the certain ad networks included in TRUSTe’s "Trusted Ads Opt-out Manager" list by clicking here. Please note that according to TRUSTe, using its Trusted Ads Opt-Out Manager does not opt you out of being served advertising and you will continue to receive generic ads.

Our Services include features such as links to other websites, login via Facebook Connect, the Facebook Like button, or other features hosted by third parties. These features may collect information from you and/or may set a cookie to enable the feature to function properly.

Your interaction with these features is governed by the privacy policy of the company providing them. Links and advertisements displayed on our site are not an endorsement, authorization or representation of our affiliation with that third party, nor are they an endorsement of its privacy or information security policies or practices.

Social media widgets

Our website includes Social Media Features, such as the Facebook Like button and Widgets, such as the Share this button or interactive mini-programs that run on our site. These Features may collect your IP address, which page you are visiting on our site, and may set a cookie to enable the Feature to function properly. Social Media Features and Widgets are either hosted by a third party or hosted directly on our Site. Your interactions with these Features and Widgets are governed by the privacy policy of the company providing it.

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4. How we use and share Personal Information

We use Personal Information mainly to provide the Services, verify and administer your Account, complete your transactions, and deliver Services to you according to your preferences or restrictions. Other than as described in this section, Hightail does not rent or share information about you with third parties.

We may combine Personal Information with Non-Identifying Information and aggregate it with information collected from other Hightail users to attempt to provide you with a better experience, to improve the quality and value of the Services and to analyze and understand how our Services are used.

We may disclose Non-Identifying Information to third parties for industry analysis, demographic profiling and other purposes. Any aggregated information shared in these contexts will not contain your Personal Information.

Marketing and communications preferences

We also use your Personal Information to contact you with Hightail newsletters, marketing or promotional materials and other information that may be of interest to you.

If you decide at any time that you no longer wish to receive such communications from us, please follow the unsubscribe instructions provided in any of the communications or email us at [email protected] with an explicit request to have your information removed from our mailing list or login to your Hightail account and change your "user preferences" with respect to the receipt of communications from us.

We will comply with your request as soon as reasonably practical. We will continue to send you strictly service-related announcements on rare occasions when it is necessary to do so. If you do not wish to receive them, you have the option to deactivate your Account by contacting us at [email protected].

Service providers

We may employ third-party companies and individuals to facilitate our Services, to provide the Services on our behalf and to perform website-related services ("Service Providers"). The types of Service Providers we use include, without limitation, service providers that provide the following types of services: email delivery, credit card transactions, accounting, account verification, customer relationship management, marketing, webcasting, website maintenance, database management, web analytics and web and live chat hosting. Our Service Providers have access to your Personal Information only to perform these tasks on our behalf, and they are obligated not to disclose or use it for any other purpose.

International transfer

Personal Information and Non-Identifying Information may be transferred to and maintained on computers located outside of your state, province, country or other governmental jurisdiction where the privacy laws may not be as protective as those in your jurisdiction.

If you are located outside the United States, you should be aware that Hightail transfers Personal Information and Non-Identifying Information to the United States and processes it there. Your use of our Services represents your agreement to such transfer.

Compliance with laws and law enforcement

Hightail cooperates with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose any information about you and your User Files to government or law enforcement officials or private parties as we believe necessary or appropriate to respond to claims and legal process (including without limitation subpoenas), to protect the property and rights of Hightail or a third party, to protect the safety of the public or any person, or to prevent or stop activity we consider to be illegal or unethical. Hightail employees or representatives may access, but not view the contents of, your User Files when acting on behalf of Hightail as described in this paragraph.

Business transfers

Hightail may sell, transfer, or otherwise share some or all of its business or assets, including your Personal Information and Non-Identifying Information in connection with a merger, acquisition, reorganization or sale of assets or in the event of bankruptcy.

Enterprise accounts

If you used an email address owned by your employer to create an individual Hightail Account and your employer adds you to an enterprise account your employer has with us, your email address and certain information concerning past and ongoing use of your individual account may become accessible to the administrator of that enterprise account. This includes:

• Text and subject of messages you have sent
• Name and content of the User Files you have sent
• Date and time messages were sent
• Email addresses of the recipients
• However, information with respect to User Files that have been deleted because they expired or were deleted by you will no longer be accessible to you or to the administrator of your employer’s account.

Retention and deletion of your information

User Files will be stored on our systems according to the user preferences you set for the file, if any, or according to the default parameters as defined by the Services and Account plan you are using if no user preferences are set. Users may delete User Files from our servers via the website or Hightail mobile apps or other client software they may have installed. There may be some latency until the User File is actually deleted from our servers.

You may review, update, delete or correct the Personal Information in your Account registration profile ("Account Information") by logging into your account on our website and changing your user preferences.

Hightail may retain your Account Information and information about transactions relating to User Files as necessary to comply with our legal obligations or for legitimate business purposes, regardless of whether your account is still active.

If you wish to deactivate your Account or request that we no longer use your Personal Information, contact us at [email protected] or [email protected]. We will respond to all requests within 30 days.

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5. Information security

Hightail treats the privacy and security of Personal Information very seriously. We employ industry-standard administrative, physical and electronic measures to safeguard Personal Information submitted to us from unauthorized access. We encrypt the transmission of all Personal Information (including credit card information on our order forms) using Secure Sockets Layer (SSL) technology and only store that information in secured data centers with restricted access.

Still, no method of transmission over the Internet or electronic data storage is 100% secure. Therefore, while we use commercially acceptable means to protect your Personal Information, we cannot guarantee its absolute security. It is critically important to keep your password secure at all times and remember that Hightail will never ask you for this information in an unsolicited communication. If you have any questions regarding our security practices or believe your account may have been compromised please contact us via the contact information below.

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6. Contacting us

If you have any questions about this Privacy Policy, please contact us at [email protected] or at: Privacy Matters c/o Hightail, Inc., 1919 S.Bascom Ave., 6th Floor, Campbell, California 95008.

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7. Changes to this Privacy Policy

We may update this Privacy Policy from time to time, so please review it frequently. If we make material changes to this Privacy Policy, we will notify you here on this website page, by email, or by means of a notice on our website home page prior to the changes taking effect.

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