Terms and Conditions of Service

This Service Agreement (the "Agreement") describes the terms and conditions on which Earnwell (Hong Kong) Limited and Earnwell UK Limited ("FileSonic", "we" or "our company") offer services to you ("Customer" or "You"). By registering for or using FileSonic services, Customer agrees to be bound by the following terms and conditions.

Eligibility for FileSonic Services

Our Services are available only to individuals and business entities (including but not limited to sole proprietorships) in good legal standing that can form legally binding contracts under applicable law. Customer hereby represents and warrants that it is duly licensed to do business and is in good legal standing in the jurisdictions in which it does business (during the term of this Agreement) that it is not a competitor of FileSonic and that the person agreeing to this Agreement for Customer is at least eighteen years of age and otherwise capable of and authorized to enter binding contracts for Customer.

FileSonic Services

Subject to the terms and conditions of this Agreement, FileSonic makes certain Services available to Customer. For the purposes of this Agreement: (a) "Customer" (or "you") means the individual or business entity that is using or registering to use the Services, including its employees and agents; (b) FileSonic "Services" means those electronic or interactive services offered by FileSonic. FileSonic reserves the right to change or discontinue any of the Services at any time.

You may upload on the Services, Content created by you or for which you have received express permission from the owner so that other users may view and download said Content. You assume all risk and liability for the Content you upload. You grant, transfer and assign to FileSonic and its successors, assigns and licensees, FOR THE SOLE PURPOSE of enabling us to make your Content available through the Service, a fully-paid, royalty-free, irrevocable, perpetual, worldwide right and license to publish, distribute, reproduce, transmit, use, and archive (if applicable) the Content.

By uploading files/content, you agree and acknowledge that FileSonic has no responsibility or obligation to monitor or notify of you of any non-compliance related to the license you have granted and that FileSonic has no responsibility to enforce or police, or aid you in enforcing or policing, the terms of said license.

You, not FileSonic, are solely responsible for the Content you upload and store on FileSonic servers. You bear full responsibility and sole liability for any lost or irrecoverable data. You understand and agree that FileSonic reserves the right to delete, move, archive (including account information) or edit any Content that it may determine violates this Agreement, its Intellectual Property Policy or is otherwise unacceptable and may terminate your access to the Services, without prior notice and at its sole discretion. You understand that you may be exposed to offending Content and waive your right to any damages.

Filesonic offers a service which allows you to upload your personal files for storage. FileSonic does not claim any ownership rights in Your uploaded files. You acknowledge that FileSonic does not have any obligation to monitor the Files or User Content that is uploaded, posted, submitted, linked to or otherwise transmitted using the Site or Services, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the Files including without limitation, any information obtained by using the Site or Services. FileSonic does not endorse anything contained in the Files or Content or any opinion, recommendation or advice expressed therein and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against FileSonic with respect thereto.

FileSonic may from time to time change the features of its service (being offered) including the removal or addition of such features. Such change or modification shall not be deemed a material change for purposes of memberships.

Ownership

You acknowledge that all materials (except those uploaded by users) provided on this Website, including but not limited to information, documents, products, logos, graphics, sounds, software and services (collectively "Materials"), are provided either by FileSonic or by their respective third party authors, developers and vendors (collectively "Third Party Providers") and the underlying intellectual property rights are owned by FileSonic and/or its Third Party Providers. Elements of the Website are protected by trade dress and other laws and may not be copied or imitated in whole or in part. FileSonic, the FileSonic logo and other FileSonic products referenced herein are trademarks of FileSonic, and may be registered in certain jurisdictions. All other product names, company names, marks, logos and symbols may be the trademarks of their respective owners.

Customer Information

Customer represents and warrants that the information it provides in FileSonic contact information forms is true, accurate, current and complete. Customer agrees to maintain and update this information to ensure that it is true, accurate, current and complete. If, at any time, any information provided by Customer is untrue, inaccurate, not current or incomplete, FileSonic will have the right to suspend or terminate Customer's account and this Agreement.

Authorized Users

Customer may designate persons to act as its agents to use the Services, provided that each designated person has the legal capacity to enter into binding contracts for Customer. Furthermore, Customer represents and warrants that each person who registers under Customer's account is an authorized agent of Customer (an "Authorized User") who has such legal capacity.

Responsibility for Access

Customer is solely responsible and liable for any and all access to and use of the Services (including all activities and transactions) by any Authorized User and/or User ID registered under Customer's account, unless such access to or use of the Services is the direct result solely of the gross negligence of FileSonic. It is Customer's responsibility, through its systems administrator Authorized User, to set the appropriate access for each of Customer's Authorized Users.

Responsibility for User IDs and Passwords

Customer is solely responsible for maintaining the confidentiality of Customer access information, i.e. account ID's and passwords of its Authorized Users, and are responsible for all activities that occur under your account.

Notification

Customer will immediately notify FileSonic if Customer notices any activity indicating that Customer's account or data is being used without authorization, including: (a) Customer has received confirmation of an order or orders placed using Customer's account which Customer did not place or any similar conflicting report; or (b) Customer becomes aware of any unauthorized use of any product or service related to its account(s).

Customer Data

Customer has sole responsibility and liability for the data its stores on FileSonic's servers. Customer controls its data through its generated link. FileSonic encourages Customer to archive its data regularly and frequently; Customer bears full responsibility for archiving its data and sole liability for any lost or irrecoverable data. Customer agrees to maintain its data in compliance with its legal obligations. FileSonic will delete Customer data upon termination of this Agreement. FileSonic will delete Customer data upon termination of this Agreement. ADD: FileSonic shall not store user or customer data and will not provide to third parties for any reason whatsoever unless to law enforcement when requested.

Acceptable

You agree to NOT use FileSonic's Service to:

  1. upload, post, e-mail, transmit or otherwise make available any Content that spreads messages of terror or depicts torture or death or other illegal acts; if serious enough, the content will be reported to the appropriate legal authority and/or the member's ISP will be contacted;
  2. harm minors in any way, this includes all and any form of child pornography; users involved will be permanently removed from the service, the content will be reported to the appropriate legal authority and/or the member's ISP will be contacted without notice or delay;
  3. upload, post, e-mail, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party.
  4. upload any content related to animals sex, violence, scat or any other illegal content. Uploading any of listed above files will get your account closed.

Illegality/Adult Content

FileSonic neither sanctions nor permits site content or the transmission of data that contains illegal or obscene material or fosters or promotes illegal activity, including but not limited to, gambling, the offering for sale of illegal weapons, and the promotion or publication of any material that may violate hate crimes legislation. FileSonic reserves the right to immediately suspend or terminate any account or transmission that violates this policy, without prior notice. Further, should Customer violate this policy, FileSonic will actively assist and cooperate with law enforcement agencies and government authorities in collecting and tendering information about Customer, Customer's site, the illegal or obscene content, and those persons that may have inappropriately accessed, acquired, or used the illegal or obscene content.

Wrongful Conduct

Customer shall not commit or permit wrongful or damaging acts which justify civil action including, but not limited to, posting of defamatory, scandalous, or private information about a person without their consent or intentionally inflicting emotional distress.

Access and Interference

Violations or attempts to violate FileSonic systems or to interrupt FileSonic services are strictly prohibited, and may result in criminal and civil liability. Examples of system violations include, without limitation:(a) Unauthorized access to or use of FileSonic Services, including any attempt to probe, scan or test the vulnerability of a system or to breach security or authentication measures without express authorization of FileSonic; or (b) Interference with Service to any customer or network including, without limitation, flooding, or deliberate attempts to overload a system and broadcast attacks; or (c) Use of any device, software, or routine to interfere or attempt to interfere with the proper working of the Services; or (d) Any action that imposes an unreasonable or disproportionately large load on FileSonic's infrastructure. Customer shall not decompile, disassemble, decrypt, extract, reverse engineer or otherwise attempt to derive the source code of the "software tools" (including the tools, methods, processes, and infrastructure) underlying the Services

Copyright or Trademark Infringement

FileSonic Services may be used only for lawful purposes. FileSonic has a zero tolerance approach towards any infringement and as an ISP is in full compliance with the United States Digital Millennium Copyright Act ("DMCA"). FileSonic operates a clear copyright policy in relation to any Content alleged to infringe the copyright of a third party. Details of that policy can be found here http://www.filesonic.com/report-abuse. As part of FileSonic's copyright policy, FileSonic will terminate user access to the Website if a user has been determined to be an infringer as per the provisions and requirements of the DMCA.

Transmission, distribution or storage of any material in violation of any applicable law or regulation, including export control laws, is prohibited. This includes, without limitation, material protected by patent, copyright, trademark, service mark, trade secret or other intellectual property rights. If you use another party's material, you must obtain prior authorization. By using the Services, you represent and warrant that you are the author and copyright owner and/or proper licensee with respect to any hosted content and you further represent and warrant that no content violates the trademark or rights of any third party. FileSonic reserves the right to suspend or terminate a Customer's transmission(s) that, in FileSonic's discretion, violates these policies or violates any law or regulation.

You acknowledge and agree that you are solely responsible for the content that you upload/store (collectively "User Content"), and for the consequences of uploading, storing such content. You agree that you will not use the Service to upload, storeUser Content that you did not create or that you do not have permission to upload, store. You promise that you have all intellectual property rights (including without limitation copyright and trademark rights), licenses, and permissions that may be needed to upload, storeyour User Content. By uploading, storing and you promise that doing so does not infringe any intellectual property rights of another person. You agree that you will not use the Service or the Site to store child pornography or other type of illegal content. The use of the Service or the Site to store child pornography will not be tolerated. If identified, it will be reported to law enforcement authorities and will result in termination of your account.

You understand and agree that FileSonic may immediately suspend access to, terminate or remove, without notice, any account or content that violates any of these prohibitions. You agree that you will comply with all applicable terms, conditions and rules regarding the use of any website, forum, or service in or through which any link to content uploaded and stored using the Service is posted or distributed. You understand and agree that failure to do so may result in the suspension or termination of your account or of access to the Service. You understand that FileSonic does not promise that User Content you upload, store, using the Service will be maintained by FileSonic. You are solely responsible for creating backup copies of and replacing any and all User Content, at your own cost and expense. You agree that FileSonic has no responsibility or liability for the deletion of, or the failure to store or to transmit, any User Content. FileSonic retains the right to create and revise limits on use, storage, upload and download speeds, maximum number and duration of look-ups or downloads and any other aspect of the Service, at its sole discretion and at any time, with or without notice.

FileSonic will not routinely screen, monitor, review or revise User Content uploadedor stored using the Service. However, FileSonic may review any such content and FileSonic reserves the right to refuse to accept, store, or permit the sharing of any User Content, to remove any User Content from the Service, and to prevent the uploading, storage, or sharing of any User Content. FileSonic does not endorse or support any User Content. FileSonic does not guarantee the accuracy or reliability of any User Content. FileSonic does not guarantee that User Content does not infringe third party rights, including intellectual property rights. FileSonic does not guarantee that User Content will not be harmful or offensive. FileSonic does not guarantee that User Content will comply with these Terms of Service. You acknowledge that any use of or reliance on User Content obtained through the Service will be at your own risk. If you become aware of any User Content that you believe violates these Terms of Service, or that is otherwise objectionable, you may inform FileSonic.

FileSonic permits the uploading of content and the hosting, sharing and publishing of such user uploads through links. You understand that whether or not such User uploads are published and/or uploaded, FileSonic does not guarantee any confidentiality with respect to any uploads.

FileSonic allows/permits you to link to materials on the Website for personal, commercial and non-commercial purposes only. FileSonic reserves the right to discontinue any aspect of the FileSonic website at any time.

You shall be solely responsible for any and all of your own uploads and the consequences of posting, uploading and publishing them. Furthermore, with uploaded content, you affirm, represent and/or warrant that:

  1. you own or retain the necessary licenses, rights, consents, and permissions to use all trademarks, copyrights, trade secrets, patents, or other proprietary rights; and
  2. You will not upload, or allow anyone else to upload, any material in breach of the terms and conditions referred to herein.
  3. You retain all of your ownership rights in your uploads.

In submitting material (video or other communication), you further agree that you shall not:

  1. submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant FileSonic all of the license rights granted herein;
  2. publish falsehoods or misrepresentations that could damage FileSonic or any third party;
  3. submit material that is obscene, illegal, unlawful, defamatory, libelous, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate;
  4. Upload any and all viruses.
  5. Impersonate another person. FileSonic does not endorse any User uploads or any opinion, recommendation, or advice expressed therein and FileSonic expressly disclaims any and all liability in connection with User uploads. FileSonic does not permit copyright infringing activities and infringement of intellectual property rights through its service and FileSonic will remove all Content and User uploads if properly notified that such Content or User uploads infringes on another's intellectual property rights. FileSonic reserves the right to remove Content and User uploads without prior notice or delay. FileSonic will also terminate a User's access to its Service, if they are determined to be an infringer. FileSonic also reserves the right to decide in its sole and unfettered discretion, whether User uploads are appropriate and comply with these Terms of Service for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, obscene or defamatory material, or excessive length. FileSonic may remove such User uploads and/or terminate a User's access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion.

You understand and acknowledge that when using FileSonic.com, you will be exposed to User uploads from a variety of sources and that FileSonic is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User uploads. You further understand and acknowledge that you may be exposed to User uploads that are inaccurate, offensive, indecent, or objectionable and you agree to waive and hereby do waive any legal or equitable rights or remedies you have or may have against FileSonic with respect thereto and agree to indemnify and hold FileSonic, its Owners, operators, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the website.

You agree that FileSonic may at its sole discretion have the right to refuse to publish, remove, or block access to any User uploads that is available via the Website at any time, for any reason, or for no reason at all, with or without notice.

FileSonic provides its website as a service to its users. However, FileSonic assumes no responsibility whatsoever for monitoring the FileSonic Services for inappropriate content or conduct. FileSonic assumes no responsibility for the content, no obligation to modify or remove any inappropriate content and no responsibility for the conduct of the User uploads of any such content. FileSonic may review and delete any User uploads that, in its sole judgment, violates this Agreement or may be otherwise offensive or illegal, or violate the rights, harm, or threaten the safety of any User or person not associated with the Website. You are solely responsible for the uploads that you make available to any third-party website provided by the Website or any other material or information that you transmit with other Users or unrelated third-parties via the Website.

Account Termination Policy

By using our site and/or service, you agree that we are authorized to block your access and delete your files for any violation of our Terms and Conditions or for the following reason.

We have a policy of terminating (as per the provisions of the DMCA), without notice and without recourse, accounts of subscribers or account holders who are infringers of copyright and you agree that we may apply that policy to your account or subscription in our sole judgment based upon a suspicion on our part or a notification we receive regardless the type of proof we receive.

You acknowledge and agree that lifetime Memberships can be terminated by FileSonic with notice.

A User's access to FileSonic will be terminated if, under appropriate conditions, the User is determined to have infringed.

FileSonic reserves the right to decide whether Content or if a User's uploads are appropriate and comply with these Terms and Conditions in regards to violations other than copyright infringement or privacy law, such as, but not limited to, hate crimes, pornography, obscene or defamatory material, or excessive length. FileSonic may remove such User uploads and/or terminate a User's access for uploading such material in violation of these Terms and Conditions at any time, without prior notice and at its sole discretion.

Misuse of System Resources

Customer shall not misuse system resources including, but not limited to, employing content which consume excessive CPU time or storage space; utilizing excessive bandwidth; or resale of access to content hosted on FileSonic servers.

Other Activities

Whether lawful or unlawful, FileSonic reserves the right to determine what is harmful to its Customers, operations or reputation, including any activities that restrict or inhibit any other user from using and enjoying the Service or the Internet. Please be aware FileSonic reserves the right to cancel any account or transmission they find in violation of any of the above policies. If appropriate, FileSonic will refer complaints to law enforcement authorities, and in such case, FileSonic will actively assist law enforcement agencies with the investigation and prosecution of any such activities, including surrendering Customer accounts and data information. Complaints about violators of our Policy should be sent via e-mail to abuse@filesonic.com. Each complaint will be investigated and may result in immediate cancellation of Services without prior notice.

No Warranty

You expressly understand and agree that: (a) your use of the Service is at your sole risk. FileSonic Services are provided on an "as is" and "as available" basis. FileSonic and its suppliers, to the fullest extent permitted by law, disclaim all warranties, including but not limited to warranties of title, fitness for a particular purpose, merchantability and non-infringement of proprietary or third party rights. FileSonic and its suppliers make no warranties about the accuracy, reliability, completeness, or timeliness of our Services, software, or content; (b) FileSonic makes no warranty that (i) the Service will meet your requirements, (ii) the service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the Service will meet your expectations, and (v) any errors in the software will be corrected; (c) any material downloaded or otherwise obtained through the use of the Service is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material; (d) no advice or information, whether oral or written, obtained by you from us or through or from the Service shall create any warranty not expressly stated in these terms and conditions.

Indemnity

You agree to defend, indemnify and hold harmless FileSonic, officers, directors, employees and agents, from and against any claims, actions or demands, including without limitation reasonable legal fees, alleging or resulting from your use of the Service, or your breach of this Agreement or other FileSonic policies, terms and conditions.

Limitation of Liability

Your use of FileSonic is at your own risk. If you are dissatisfied with any aspect of our Service or with these terms & conditions, or any other rules or policies, your sole remedy is to discontinue use of the Service. You expressly understand and agree that FileSonic shall not be liable for any direct, indirect, incidental, special, consequential exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if we have been advised of the possibility of such damages), resulting from: (I) the use or the inability to use the Service; (II) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; (III) unauthorized access to or alteration of your transmissions or data; (IV) statements or conduct of any third party on the service; or (V) any other matter relating to the Service.

Modifications to Agreements, Policies or to our Services

Although we may attempt to notify you when major changes are made to these Terms and Conditions, you should periodically review the most up-to-date version. FileSonic may, in its sole discretion, modify or revise these Terms and Conditions and policies at any time, and you agree to be bound by such modifications or revisions. Nothing in these Terms of Service shall be deemed to confer any third-party rights or benefits. As such, we reserve the right to change these terms and conditions at any time without notice. We also reserve the right at any time to modify or discontinue the Service, temporarily or permanently, with or without notice to you. You agree that we shall not be liable to you or any third party for any modification, suspension or discontinuance of the Service. You acknowledge that we may establish general practices and limits concerning use of the Service, including the maximum disk space that will be allotted on FileSonic's servers on your behalf and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. Further, you acknowledge that FileSonic may change subscription fees at any time without notice. Changes in subscription fees will take effect on expiration of any existing Customer subscription.

Termination

Without limiting other remedies, FileSonic may immediately issue a warning, suspend (i.e., lock out access and operation of Services for Customer) either temporarily or indefinitely, or terminate Customer's account and refuse to provide Services to Customer if: (a) FileSonic believes that Customer has violated or acted inconsistently with this Agreement, or any of our policies; or (b) Customer has failed to pay fees or other payments due to FileSonic; or (c) FileSonic is unable to verify or authenticate any information Customer provides to FileSonic; or (d) FileSonic believes that Customer's actions may cause legal liability for Customer, FileSonic's other clients, or FileSonic. FileSonic may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these terms and conditions may be effected without prior notice and acknowledge and agree that FileSonic may immediately deactivate, archive or delete your account and all related information and data and/or any further access to such data or the Service. Further, you agree that FileSonic shall not be liable to you or any third-party for any termination of your access to the Service. Upon termination of this Agreement by either Customer or FileSonic, all of Customer rights under this Agreement, and FileSonic's provision of Services, will terminate immediately.

The Sections 6 ("Customer Data"), 9 ("No Warranty"), 10 ("Indemnity"), 11 ("Limitation of Liability") and this Section 13 will survive any termination of this Agreement.

Miscellaneous

These terms and conditions will be governed by and construed in accordance with the Laws of the Hong Kong Special Administrative Region of the People's Republic of China, excluding that body of law governing conflict of laws. Any legal action or proceeding relating to or arising out of these Terms or your use of the Website will be brought in Hong Kong and you submit to the venue and personal jurisdiction of such court. If any provision of these Terms is held to be invalid or unenforceable, such provision will be enforced to the greatest extent possible and the remaining provisions will remain in full force and effect. Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section. FileSonic's failure to act with respect to a breach by Customer or others does not waive FileSonic's right to act with respect to subsequent or similar breaches. No action by Customer arising under this Agreement may be brought at any time more than twelve (12) months after the facts occurred upon which the cause of action arose.

Relationship

Customer and FileSonic are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

Assignment

Customer may not assign any of its rights, or delegate any of its duties, under this Agreement and any attempted assignment will be null and void.

Force

Operation of our Services may be interfered with by numerous factors outside of our control and we shall not be liable to you for any delay or failure in performance under this Agreement resulting directly or indirectly from causes beyond FileSonic's control.

Interpretation

If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck, as narrowly as possible and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

FileSonic Confidential Information

You represent and warrant to FileSonic that (a) you are not a competitor of FileSonic, (b) you shall keep publicly unannounced information and materials pertaining to FileSonic, pre-release software, testing or testing procedures strictly confidential and (c) you shall not use any information gained from access to the FileSonic Website or use of the FileSonic Services to compete with FileSonic in its business.

Exceptions

Except for other agreements or terms appearing on the Web site, this Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.

Additional Information

Any questions relating to our Legal Agreements and Policies may be directed to support@filesonic.com