Terms of Service
Last updated February 2014
Thanks for being part of Hightail. By using Hightail, you automatically agree to these Terms, so you should first read them carefully. The right column features a short explanation of each of the Terms. These short explanations are not part of the agreement between you and Hightail or legally binding but they should help with your review of these Terms.
We know that legalese is hard, even for a lawyer. So, to make things a bit more human, we'll be giving you the quick notes version of each section.
Quick links to any section you may want to visit quickly
1. An Important Agreement
By using our Services, you agree to be bound by these Terms.
If you use our Services on behalf of a company (such as your employer) or other legal entity, you represent that you have the authority to bind that company or other legal entity to these Terms.
If you do not agree to these Terms, you should not use Hightail or buy a subscription.
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This is a legal agreement so make sure you read it carefully.
Account: You set up an Account in order to use our Services.
Paid Account: An Account for Services that requires payment by you directly to Hightail.
Paid Subscription: A Paid Account for a subscription for some time period (e.g., monthly or annual).
Payment Method: The credit card, PayPal account or other method you use to pay for a Paid Account.
Services: All services, software and information provided to you by Hightail, including all Hightail online services and the Hightail website, as well as our mobile and client apps.
Terms: What we'll call these Terms of Service.
User Files: The digital files that you and others may upload, download, store, or send using our Services.
We/Our/Us/Hightail: Refers to Hightail, Inc. (formerly YouSendIt, Inc.)
You/Your: Refers to you, or the company or entity you represent.
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Explanations of some words that we'll use a lot.
3. Changes to these Terms
We may modify these Terms at any time, at our sole discretion. If we do, we will post the modified Terms on our website or notify you through other communications. It is important that you check our Terms from time to time because if you continue to use the Services after we have posted modified Terms on our website, you are indicating to us that you agree to be bound by the modified Terms. If you do not agree to the modified Terms, then you should not use our Services anymore.
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If we modify these Terms we will re-post them on our website.
4. Changes to the Services
Hightail is always evolving so some or all of our Services may change over time. We may also change which features, benefits or restrictions apply to different Account types. We reserve the right to make these changes at any time and without notice, at our sole discretion. For example, we may establish or change for various types of Accounts:
- The maximum number or size of User Files you or others may upload, download or store;
- The maximum number of times or frequency you or others may use specific features;
- The maximum days User Files will be stored; and
- Maximum bandwidth usage.
Also, if you make changes to your Account yourself, it may affect the Services provided to you. For example, if you cancel a Paid Subscription and continue to use a free Account, certain features or benefits may no longer be available to you.
If either you or we make any changes that reduce the size, storage space or number of User Files you are entitled to use or store, we will provide notice to you. After we give you notice, if you still have not deleted excess User Files, then we may delete them in our discretion.
Hightail may suspend or terminate your free Account or Paid Subscription if your usage does not comply with the features, benefits and restrictions that apply your Account at that time.
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We may change our Services. If we change something like your storage space and need you to delete files, we'll give you notice.
5. Your responsibilities: Account Information
Whenever you provide us with information about yourself, you agree to provide accurate, current and complete information. You also agree to keep your information up to date. We reserve the right to suspend or terminate your Account if it is not.
We will have no liability for anything that may happen, or may not happen, because the information we have about you is inaccurate, such as our having the wrong email address for you. You authorize us, directly or through third parties, to make any inquiries we consider necessary or appropriate to verify your information, which may include providing your information to those third parties.
You are responsible for safeguarding your password. You agree not to disclose your password to anyone else. You have sole responsibility for any actions taken under your password, whether or not you authorized those actions. You will immediately notify Hightail of any unauthorized use of your password.
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You need to give us accurate information about yourself and keep your password safe (oh, and make sure it's not 1234)
6. Your responsibilities: Backup your User Files and Data
Because we provide the Services "as is" and make no warranty for the Services (see below in these Terms under the section called "Disclaimer of Warranties"), you should save and maintain a backup copy of any User File that you wish to keep in its original form. Also, features of the Services that synchronize data between our servers and your computer or other devices necessarily may result in the deletion or replacement of your User Files. You are responsible for maintaining and protecting your User Files including all of your data and information that is uploaded, downloaded, stored, or otherwise processed by our Services. You will be responsible for all costs and expenses that you or others may incur with respect to backing up, restoring and recreating any User Files, data and information that is lost or corrupted as a result of your use of the Services.
Hightail is not required to backup or store any current or superseded versions of your User Files, although we may choose to do so.
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You should maintain a backup of your files somewhere else.
These Payment Terms apply to purchases you make from Hightail. However, if you purchase our Services from one of our resellers instead of from us, then that reseller's payment terms apply to your purchase instead of these Payment Terms.
You agree to pay for what you buy
By purchasing a Paid Account, you agree to pay all charges in effect at that time for the Services you buy, along with all applicable taxes and other fees. You authorize Hightail to charge your Payment Method for your initial purchase, as well as any future purchases and automatic renewals of any Paid Subscription.
If we are unable to charge your Payment Method (for example, because your credit card has expired), you are still responsible for paying us. Except as described under "Termination" below, all fees are non-refundable. All amounts are to be paid in US Dollars unless another currency was specified when you made your purchase.
If you say you'll buy it, you must pay for it.
Automatic renewal and payment of subscriptions
Most Paid Subscriptions are for an initial period of time, usually a month or a year. At the end of this period, your Paid Subscription will be automatically renewed for the same duration as your initial subscription unless you cancel.
If you do not cancel before the end of your current subscription period, your Paid Subscription will be automatically renewed, you will be responsible for paying for the next subscription period, and you authorize Hightail to charge your Payment Method at the current, full-price rate for your specific type of Paid Subscription.
A subscription will automatically renew at current prices unless you cancel it.
Cancelling Paid Subscriptions
You may cancel your Paid Subscription at any time either on our website or by contacting Hightail customer service. If you cancel before the end of your current monthly or annual subscription period, your subscription will not be renewed. You will not be entitled to a refund of any amount for the remaining time of your current Paid Subscription.
If Hightail discontinues the Services that you have already paid for, we will give you a proportional refund of that amount for the remaining time in your current subscription period.
Canceling your subscription is easy.
Change in authorized amount
The fees applicable to your Paid Account may change in the future. If the amount to be charged to your Account changes (other than due to the imposition or change in the amount of state sales taxes, VAT, or similar taxes and fees), Hightail will provide you with notice of the change and the new amount to be charged together with the date of the charge at least ten (10) days before the scheduled date of the transaction.
If your account fee changes, we'll give you 10 days notice.
Hightail may offer trial subscriptions during which you may use a Paid Subscription for the time period specified in the trial offer (a "Trial Period") prior to your Payment Method being charged. You will not receive a notice from us that your Trial Period has ended or that your Payment Method will then be charged. Unless you cancel your subscription prior to the end of the Trial Period, your Payment Method will be charged.
Trial subscriptions may not be combined with any other offer unless otherwise provided in the promotional offer. Hightail reserves the right to restrict who is eligible for trial subscriptions.
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When a free trial ends, you will automatically be charged for a Paid Subscription unless you cancel.
8. Intellectual property rights: User Files and rights you grant to us
We do not claim any ownership rights in your User Files. To the extent necessary for Hightail to provide our Services (and only as necessary), you give us and our third party service providers permission to use, copy, distribute, compress and otherwise process User Files. In legalese, this means that you grant us a non-exclusive, worldwide, royalty-free, transferable license, with the right to grant sublicenses, to use, copy, modify, store, publicly display, publicly perform, transmit and distribute your User Files solely in connection with operating and providing the Services.
You represent and warrant that you own or have the necessary rights and permissions to send, upload, or store your User Files using our Services and that your User Files and your use of our Services will not infringe, misappropriate or violate any third party's patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
The information in your User Files is yours and you agree not to upload or share things that you shouldn't. We also have your permission to have your User Files pass through the Services.
If you have access to User Files of others, you must respect their intellectual property rights and only use those User Files according to the permissions granted to you by the owner of those User Files. You must not modify, rent, lease, loan, sell, distribute copies of or create derivative works based upon those files in any way that would violate their rights.
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If another Hightail user sends or shares files with you, you must respect their rights.
Some of the features of our Services are designed to upload, download and synchronize files between your computer, your other devices (like your phone or tablet) and our servers. Depending on the features you use, this can happen automatically. By using the Services, you give us permission to access your computer and other devices for the purpose of providing the Services to you.
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If we're syncing your files, we will need to access your devices.
10. Intellectual Property Rights: Hightail Services
Hightail and its licensors own all right, title and interest in and to the Services. Copyright, trademark and other laws of the United States and other countries protect the Services. You will not remove, alter or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services. Except as expressly permitted in these Terms, you may not reproduce, modify, or prepare derivative works based upon the Services, or distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise exploit the Services. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Hightail or its licensors, except for the licenses and rights expressly granted in these Terms.
Please don't goof around with what's ours.
We welcome feedback, comments and suggestions for improvements to the Services ("Feedback"). If you submit Feedback to us, we may use it for any purpose without compensation to you.
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Get in touch. We'd love to hear from you.
11. Intellectual Property Rights: Copyright Policy
Hightail 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. Hightail reserves the right, in its sole discretion, at any time and without prior notice, to remove or disable access to any User Files that we believe to be in violation of these Terms or otherwise harmful. Please see our Copyright Policy for further information.
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We respect copyright laws. You should too.
12. Intellectual Property Rights: Trademarks
Hightail, the Hightail logo, the Hightail app icon, YouSendIt, the YouSendIt airplane graphic and all other Hightail trademarks, service marks, product names, and trade names of Hightail appearing on the Services are owned by Hightail. Other trademarks, service marks, product names, and logos appearing on the Services are the property of their respective owners. You may not use or display any trademark, service mark, product name, trade name, or logo without the owner's prior written consent.
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Our awesome name and logo are not yours to mess with.
As a condition to your use of the Services, you agree not to:
- Share your Account with any other person or entity;
- Upload, store, access or transmit any User File: (i) that you do not have the lawful right to copy, transmit, distribute, and display (including any User Files that would violate any confidentiality or fiduciary obligations that you might have with respect to the User Files); (ii) for which you do not have the consent or permission of each identifiable person in the User Files to use the name, voice, signature, photograph, or likeness of each such person (to the extent each is implicated by the User Files); (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;
- Harm or threaten to harm other users in any way, or interfere with, or attempt to interfere with, the access of any user, host or network, including without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Send unsolicited email, junk mail, spam, chain letters, promotions, or advertisements for products or services;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Don't do any of these bad things, including sharing illegal material, hacking us, or sending spam.
If you do, there will be consequences for you.
Hightail has the right to investigate and prosecute violations of any of the above, including without limitation, possible infringement of any intellectual property rights and possible security breaches to the fullest extent of the law. Hightail may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that, although Hightail has no obligation to monitor your access to or use of the Services, it has the right to do so for the purposes of operating the Services, to ensure your compliance with these Terms, or to comply with applicable law, or the order or other requirement of a court, administrative agency, or other governmental body.
Hightail reserves the right at all times to disclose, in its sole discretion, any User Files as necessary to (a) satisfy any law, regulation, or governmental request, or (b) reduce or prevent what Hightail considers to be, in its sole discretion, a serious or imminent threat to your health or safety, or the health or safety of another.
In appropriate circumstances, Hightail may in its discretion terminate the Accounts and/or delete the User Files of users who are, or are believed to be or are charged with, infringing or violating the intellectual property rights of third parties, any applicable law or regulation, or otherwise in violation of the "things you may not do" listed above.
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We don't want to monitor or report on your activity, but may do so if we have reason to believe you're breaking these conditions.
14. Termination of Services: By You
If you have a free Account, we will generally keep that Account for you in case you want to keep using it or use it in the future. Contact us if you want to terminate a free Account. As explained below, we also reserve the right to terminate free Accounts.
For cancelling Paid Subscriptions, see above under the Section called "Payment Terms".
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This one is pretty straightforward.
15. Termination of Services: By Us
We reserve the right to discontinue the Services we provide to you in their entirety at any time and without prior notice to you. As noted above under Payment Terms, if Hightail discontinues Services that you have already paid for, we will give you a proportional refund of that amount for the remaining time in your current subscription period.
We reserve the right to terminate or suspend free Accounts at any time, with or without notice, in our discretion. For example, we may terminate your free Account if you have not logged in for at least 90 days, but we may terminate it for any other reason in our discretion.
Hightail may cancel or suspend your Paid Subscription if you have not paid for your Account when payment is due, with or without notice to you. We may, but will not be required to, convert any cancelled Paid Subscription to a free Account.
If you violate any of these Terms, we will have the right to terminate or suspend your Account, immediately at our discretion and without prior notice to you, and we will not be required to refund any fees already paid by you. You will also remain liable for all amounts you were supposed to pay, but have not yet paid.
If your Account is terminated for any reason, we may delete your User Files on our servers without further notice to you.
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Here are a bunch of reasons why we could cancel your Service. Not paying your bill is a biggie.
16. Hightail Application License
Hightail provides various software applications that you may use with your Account. Subject to your compliance with these Terms, Hightail grants you 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 you own or control, and to run such copy of the application solely for your own personal use with your Account. Hightail reserves all rights in and to the application not expressly granted to you under these Terms.
Additional terms apply to any Hightail application accessed through or downloaded from the Apple App Store, which can be found here.
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Our mobile, desktop and other apps are covered by these Terms.
Hightail software applications may be distributed with certain independent code that is licensed under open source licenses ("Open Source Code"). Open Source Code is licensed to you in accordance with the applicable open source licenses, which may in part be found here. To the extent that these Terms conflict with any of those open source licenses, the conflicting terms and conditions will not apply to the corresponding Open Source Code.
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Some of our apps contain a type of software called open source code and we have to tell you about some terms that go with that software. They won't affect your use of the apps.
18. Links to Third-Party Websites or Resources
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
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If we post a link to a third-party, we're not responsible for what's there.
19. Disclaimer of Warranties
The Services are provided "as is," without warranty of any kind. Without limiting the foregoing, Hightail explicitly disclaims any warranties of merchantability, fitness for a particular purpose, quiet enjoyment or non-infringement and any warranties arising out of course of dealing or usage of trade. Your use of the Services is at your own risk. Hightail will not be responsible for any damages to your computer system or the computer system of any third party resulting from use of the Services. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis, or operate at any particular speed. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of any part of the Services. We will not be responsible for any failure of the Services to store User Files, for the deletion of User Files stored on the Services, or for the corruption of or loss of any data, information or content contained in User Files.
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We are not liable if anything goes wrong.
You will defend, indemnify and hold harmless Hightail, its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses and expenses, including, without limitation, reasonable legal and accounting fees, arising out of, or in any way connected with your access to or use of the Services, your User Files or your violation of these Terms.
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You will be responsible for any damage you cause us.
21. Limitation of Liability
Neither Hightail nor any other party involved in creating, producing, or delivering the Services will be liable for any incidental, special, exemplary, or consequential damages, including lost profits, loss of data, or goodwill, service interruption, computer damage, or system failure, or the cost of substitute Services arising out of, or in connection with these Terms or from the use of or inability to use the Services, whether based on warranty, contract, tort (including negligence), product liability, or any other legal theory and whether or not Hightail has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.
In no event will Hightail's total liability arising out of or in connection with these Terms or from the use of, or inability to use the Services exceed the amount you paid for use of the Services in the twelve (12) months leading up to the event giving rise to the claim of liability, or one hundred dollars ($100) if you have not paid anything to Hightail, as the case may be.
The limitations of damages set forth above are fundamental elements of the basis of the bargain between Hightail and you.
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OK, so you might get $100.
If a dispute arises between you and Hightail, our goal is to provide you a neutral and cost effective means of resolving the dispute quickly. To help us do that, you agree to first contact Hightail customer support to describe the problem and seek a resolution. If that does not resolve the issue, then you and Hightail agree to the following methods to resolve any dispute or claim between us:
If there's a problem, contact our Customer Support team.
These Terms will be governed by the substantive laws of the State of California.
California law rules.
Agreement to Arbitrate
You and Hightail agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an "IP Protection Action"). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Hightail are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Hightail otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration location and procedure
Unless you and Hightail otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Hightail submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award of damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. Hightail will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Hightail will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the "Changes to these Terms of Service" section above, if Hightail changes this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of Hightail's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Hightail in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
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We'll sort out any disputes by arbitration, not by going to court, and class actions are not allowed.
These Terms are the entire and exclusive understanding and agreement between Hightail and you regarding the Services. The Terms replace all prior oral or written understandings and agreements between Hightail and you regarding the Services. If for any reason a court finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer your rights or obligations under these Terms without Hightail's prior written consent. Hightail may freely assign or transfer our rights and obligations under these Terms without restriction.
Any notices or other communications provided by Hightail under these Terms, including those regarding modifications to these Terms, will be given either by posting on Hightail's website, or by email, or both.
Hightail's failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Hightail. Except as expressly stated in these Terms, the exercise by either you or us of any remedies under these Terms will be without prejudice to other remedies either you or we may have.
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Wow, you're still reading these. Well done. And your reward…some terms for the Terms. Seriously.