Last updated: November 20, 2013
XKLAIM MOBILE APPLICATION
Notice to Minors: You must be 18 or over (or the legal age to form a binding contract in your jurisdiction if that age is greater than 18 years of age), to use the XKlaim Mobile Application. If you are under the age of 18 (or the applicable legal age in your jurisdiction), you may use the XKlaim Mobile Application only with the involvement and consent of your parent or guardian after he/she agrees to and accepts this License.
Agreement to Arbitrate: This License contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the Agreement to Arbitrate (see Claims and Disputes, Section 12 and Section 12.3 ("Agreement to Arbitrate")). Unless you opt-out: (a) you will only be permitted to pursue claims against XKlaim on an individual basis, not as part of any class or representative action or proceeding; and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1.1 The XKlaim Mobile Application is licensed, not sold, to you (sometimes referred to as "You" or "Your") by XKlaim, Inc., a Delaware corporation (sometimes referred to as "XKlaim", "Us", "We", "Our") for use strictly in accordance with the terms and conditions of this License and the applicable usage rules established by any third party mobile device platform or service provider or the third party from whom You are downloading this Mobile Application (as defined in section 1.2) that relate to Your Mobile Device (as defined in section 2.1) ("Usage Rules"), which are incorporated herein by reference. Certain Usage Rules are described in Section 14 and You acknowledge and agree that it is Your responsibility to determine what Usage Rules apply to Your use of the Mobile Application and Services (as defined in section 1.2), as they may be applicable to You depending on: (a) Your Mobile Device; (b) the method or means by which You downloaded or accessed the Mobile Application; and (c) the third party from whom You downloaded or accessed the Mobile Application.
1.2 Upon acceptance of this License, XKlaim shall allow you to use the XKlaim services ("Services") which consist of the following: (a) use of the Mobile Application, together with various other XKlaim-powered mobile applications and certain third-party integrated mobile device software applications, together with any software code, scripts, interfaces, graphics, displays, text, documentation and other components; (b) any updates, modifications, enhancements, supplements or replacements for the items listed in subsection (a) unless separate terms accompany such updates, modifications, enhancements, supplements or replacements, in which case the separate terms will apply; and (c) any of the internet-based, interactive information uses, advertising, general, editorial and personalized content, and interactive tools provided by XKlaim that may be used or accessible by means of the Mobile Application.
1.3 We may use and display XKlaim and third-party information, content, graphics, images, photographs, pictures, music, sound and video recordings, animations, effects, barcodes, video, hyperlinks and other material and User Generated Content (as defined in section 5.1), (collectively "Material") available by means of the Services for Our authorized users' personal, non-commercial use. YOU MAY ONLY ACCESS AND USE THE MATERIAL FOR YOUR PERSONAL, NONCOMMERCIAL USE WITH THE SERVICES AND IN COMPLIANCE WITH THIS LICENSE AND ALL APPLICABLE LAWS.
1.4 We make no guarantees or endorsements, nor can we be responsible for, any information accessible using the Services or included in the Material, including the currency, content, quality, copyright compliance or legality of such information, nor are we responsible for any resulting loss or damage relating to the use of such information. We reserve the right, in our sole discretion and without any obligation, to make improvements to, or correct any error or omissions in, any portion of the information accessible using the Services. Where appropriate, we will endeavor to update information accessed using the Services on a timely basis, but shall not be liable for any delay or inaccuracies related to such updates.
1.5 You acknowledge and accept that use of the Services may produce information that some people find objectionable, inappropriate, or offensive. We are not responsible for the accuracy, relevancy, copyright compliance, legality, completeness, timeliness or decency of material contained in any externally linked websites or uses.
1.6 By using the Services You are representing that are not prohibited from using or receiving the Services pursuant to any applicable Usage Rules and the laws of the local or national jurisdiction from which You are accessing or using the Services. If You are not able to make the representations in the preceding sentence, You are prohibited from using the Services, however, any unauthorized use of the Services shall be subject to this License until Your unauthorized usage terminates. By using the Services on behalf of any third party You are representing to us that You are an authorized representative of that third party and that Your use of the Services constitutes their acceptance of the License.
1.7 Intended Use Of Product. The XKlaim Card is a virtual, single use prepaid card issued at the request of a an individual or merchant (the "Purchaser") for use at a merchant that accepts credit cards. The XKlaim Card is issued at the request of the Purchaser to a designated recipient ("Recipient(s)") for that Recipient's use in making a purchase at a specified merchant, therefore this card is considered "closed loop" and may only be used at the store specified and is therefore limited to a single purchase at the specified merchant. Additional Card features include: XKlaim Cards are purchased and redeemed using a consumer facing mobile phone app on the XKLAIM platform (the "XKlaim App" or "App"). The product is geared toward friends and family who wish to enable specific purchases by other family members and friends. For example, parents can use the XKlaim App (which is tied in to their credit card) to issue XKlaim Cards to their children for purchases of particular items at particular stores. XKlaim Card Purchasers are charged a one-time issuance fee of 5% at the time of each Card purchase (the "Issuance Fee"), subject to applicable state law, which fee is charged to their credit card. (State of use is identified using geo-location and zip code information, all applicable state laws govern fees and usage of the card issued through XKlaim Inc and will override information in this agreement. This includes, but is not limited to the rules for fees in the states of Colorado, Hawaii, Maine, Michigan, New Mexico, Vermont, and Louisiana. User will receive a notification at the time of purchase of any such conflict and what the adjusted fee is for the state where the transaction takes place). No service, dormancy, inactivity or redemption fees are associated with the XKlaim Cards. When purchasing an XKlaim Card, each Purchaser is asked to set a usage time frame during which the Card is expected be used (e.g., the next 24 hours; through the end of this week; etc.). If the funds loaded to the XKlaim Card are not used by the Recipient within this usage time frame, the funds are refunded to the Purchaser automatically, and a fee of 5% of the face value of the XKlaim Card is deducted from the Card value prior to returning the value of the XKlaim Card to the Purchaser (the "Return of Funds Fee"), subject to applicable state law (user will receive a notification of fee amount at time of charge and any conflict will be determined by user's location and applicable state law will prevail in the determining of fees or if such fee is allowed by the state where the transaction takes place). In addition, so long as the Card has not been used, Purchaser may also request that the XKlaim Card be cancelled, prior to the end of the usage time frame. In such instance, the Return of Funds Fee in the amount of 5% of the face value of the XKlaim Card is deducted from the Card value prior to returning the value of the XKlaim Card to the Purchaser. When the Purchaser makes such a cancellation request, funds are returned to the Purchaser in less than 24 hours following the Purchaser's request to cancel an XKlaim Card. The maximum value of an XKlaim Card is currently set at $400. A limit on the number of Cards a Purchaser can request each day will also be set. If one Purchaser requests more than the maximum number of Cards, then the Purchaser's account is flagged for review and potentially blocked. No Purchaser will be allowed to purchase more than $2,000 in Cards per day. A Purchaser's ability to purchase a Card is also blocked on the fourth request for the same dollar amount in one day (since it would be rare for that many single item store purchases to equal the same amount). A Recipient may only use a Card a single time, so, for example, if only one of several items is purchased, the Card may not be used later for a separate purchase.In the background, the XKlaim App uses geo-location data from the Recipient's mobile phone to identify his or her current location and limit the visibility of the virtual Card on their mobile phone to the specific merchant location approved by Purchaser. If Recipient tries to use the Card at a location other than the location approved by the Purchaser, and the geo-locator is able to discern this, the transaction will be declined and the Card will be cancelled. However, if the Recipient attempts to use the Card at a store near the requested store, the geo-location data may not be specific enough for the (s)XKLAIM platform to identify the new store. In this case, the Recipient's attempt to use the Card in the other store may be successful. If a Recipient is successful in using a Card in a store other than the requested store, the XKlaim Card platform will notify XKLAIM, who will in turn notify the Purchaser and the Recipient, that Recipient is attempting to use, or has succeeded in using, the Card for a purchase in a store other than the one originally requested. This is considered a breach of contract and the Recipient and possibly the Purchaser will not be allowed further use of the XKlaim App. Any use of a card approved for a requested store and presented for redemption in a non-requested store constitutes a violation of these terms and conditions. Any such uses will be in breach of contract, and XKLAIM has reasonable measures in place to identify violations and enforce its restrictions.
The product is also geared towards Brands and Merchants who want to give shoppers and offer that is only redeemable at their store. The xKlaim card used in this way has all the same controls and advantages described above.
2. LICENSE GRANT AND RESTRICTIONS ON USE.
2.1 XKlaim grants You a personal, non-exclusive, non-transferrable, limited and revocable license to install and use the Mobile Application on a single mobile telephone, tablet or other mobile device controlled by You (each a "Mobile Device"), and to access and use the Services on such Mobile Device only in accordance with the terms and conditions of this License and the applicable Usage Rules. Any other use of the Mobile Application or Services in any other manner, including, without limitation, resale, transfer, modification or distribution of the Mobile Application or Material is prohibited.
2.2 You shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Mobile Application; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work of the Mobile Application; (c) violate any applicable laws, rules or regulations in connection with Your access or use of the Services; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of XKlaim or its affiliates, partners, suppliers or the licensors of the Services or otherwise obscure or modify the any manner in which the Services are displayed by means of the Mobile Application; (e) install, use or permit the Mobile Application to exist on more than one Mobile Device at a time or on any other mobile device or computer, other than by means of Your separate downloads of the Mobile Application, each of which is subject to a separate license (this restriction however does not limit Your right to reinstall the Mobile Application on the specific Mobile Device for which it was downloaded); (f) distribute or link the Services to multiple Mobile Devices or other uses; (g) make the Services available over a network or other environment permitting access or use by multiple Mobile Devices or users at the same time; (h) use the Services for data mining, scraping, crawling, redirecting, or compiling a collection of listings or data for any purpose (including, without limitation, for a use that is, directly or indirectly, competitive with or in any way a substitute for any uses offered by XKlaim) other than one authorized pursuant to this License; (i) use the Services to send automated queries or to send any unsolicited commercial e-mail; (j) use the Services to attempt to interfere with the proper functioning and display of the proper operation and usage of the Services or any other authorized users and third parties; or (k) use any proprietary information or interfaces of the Services or other intellectual property for any reason.
2.3 You agree that You will not use the Services for any revenue-generating endeavor, commercial enterprise, or other purpose for which they are not designed or intended (except that XKlaim and its affiliates and their respective employees are expressly permitted to use the Services for the internal business purposes of XKlaim and its affiliates). By using the Services, You agree that You will not copy, reproduce, alter, modify, create derivative works from, rent, lease, loan, sell, distribute or publicly display any of the Material (except for Your own personal, non-commercial use) accessed by the Services without the prior written consent of XKlaim.
2.5 XKlaim does not warrant that the Services will be compatible or interoperable with Your Mobile Device or any other piece of hardware, software, equipment or device installed on or used in connection with Your Mobile Device. You acknowledge and agree that XKlaim and its affiliates, partners, suppliers and licensors shall have no liability to You for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.
2.6 You acknowledge that You are responsible for addressing any third party claims relating to Your use or possession of the Services, and agree to notify XKlaim of any third party claims relating to the Services of which You become aware. Furthermore, You hereby release XKlaim from any liability resulting from Your use or possession of the Services, including, without limitation, the following: (a) any product liability claims; (b) any claim that the Services fails to conform to any applicable legal or regulatory requirement; and (c) any claim arising under consumer protection or similar legislation.
2.7 You may not use or otherwise export or re-export the Services except as authorized by United States law and the laws of the jurisdiction(s) in which any use was obtained. You represent and warrant that You are not: (a) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist sponsoring" country; or (b) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. You also agree that You will not use the Services for any purposes prohibited by United States law.
2.8 You acknowledge that XKlaim may, from time to time (but is under no obligation to), issue updates to the Services. You agree that this License will apply to all such updates.
2.9 From time to time and without prior notice to You, We may change, expand and improve the Services. We may also, at any time, suspend or cease to continue operating part or all of the Services or selectively disable certain aspects of the Services or portions of the Services accessible by the Mobile Application. Any modification, suspension, or elimination of the Services will be done in Our sole and absolute discretion and without an ongoing obligation or liability to You. Your use of the Services does not entitle You to the continued provision or availability of the Services.
3. YOUR USE OF THE SERVICES.
3.1 You acknowledge and understand that certain Services require and utilize phone use, data access or text messaging capability. Except as otherwise noted as part of the Services, XKlaim does not charge for the use of Services, but service provider or carrier rates for phone, data and text messaging may apply and You are solely responsible for any such charges.
3.2 The functional use of the Services may be dependent on the data related to Your geographic location and geopositional data, and You acknowledge and agree that Your failure to provide (or make accessible) that data may limit the functionality of the Services. XKlaim makes no warranty with respect to the accuracy of Services provided to You in reliance on location and geopositional data provided by You, the Mobile Application or via Your Mobile Device.
3.5 Certain personal information and other information provided by You in the use of the Services may be stored on Your Mobile Device even if XKlaim does not collect such information. It is Your responsibility to maintain the security of Your Mobile Device from unauthorized access.
3.6 When you create an account you agree to allow the Services to use Your current location, and You give XKlaim and its affiliates and suppliers permission to use, disclose, and display the current location of Your Mobile Device in the provision of this Use, including geo-tagging Your messages and content. XKlaim and its affiliates and suppliers are not responsible for Your location information should You choose to publicly disclose it through the use of the Services.
4. INTELLECTUAL PROPERTY NOTICE. You acknowledge and agree that: (a) the Mobile Application, Services, and any related Material; (b) the source and object code of the Mobile Application; (c) the user interface, algorithms, structure, sequence and organization of the Services, and/or accessed using the Services; (d) the XKlaim trademarks, tradenames, logos, and all related products and use names, design marks and slogans; and (e) any and all copyrights, patents, trademarks, trade secrets, publicity rights and other intellectual property rights associated therewith (collectively, the "Intellectual Property"), are the sole property of XKlaim, its subsidiaries, parents, affiliates, licensors, suppliers or other third parties. Except as expressly and unambiguously provided herein, You do not possess, and XKlaim does not grant to You, any express or implied rights (whether by implication, estoppel or other legal theory) in or to any Intellectual Property (or the unauthorized use of the Intellectual Property) and all such rights are retained by XKlaim, its subsidiaries, parent companies, affiliates and/or any third party owner of such rights. You acknowledge and agree that You, and not XKlaim or any third party mobile device platform or use provider, shall be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim or suit, or any other harm or damages resulting from Your use of or access to the Mobile Application, Services and Material.
5. CONTENT LICENSE FROM YOU.
5.1 Content submitted to Us or posted on the Sites and/or the Services, in any form or medium, including, without limitation, text, files, images, photos, video, sounds, musical works, works of authorship, or any other material submitted in any manner the Services allows is considered "User Generated Content." As between You and XKlaim, You may possess certain Intellectual Property rights in Your own User Generated Content that You may submit to Us. By generating, submitting or otherwise providing, in any form or medium, User Generated Content to us or via the Services, You hereby grant to XKlaim and its affiliates, and third parties authorized by Us to distribute the information contained in the Services, in whole or in part, on the third parties' websites, networks or via other applications ("Third-Party Distributors"), a royalty-free, fully paid-up, non-exclusive, perpetual, sublicensable right and license to use, host, cache, route, tag, encode, transmit, store, copy, modify, create derivative works, distribute, publicly perform, publicly display, reformat, excerpt, analyze and adapt Your User Generated Content in order to: (a) host Your User Generated Content on XKlaim's servers; (b) index Your User Generated Content; and (c) display, perform and distribute Your User Generated Content, in whole or in part, in connection with the Services and other XKlaim products and services now existing or hereafter developed, including without limitation for syndication on third party sites, and you waive any moral rights you may have in having the material altered or changed in a manner not agreeable to you. This license gives XKlaim the right to display Your User Generated Content via streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies, and to display limited excerpts of Your User Generated Content for no fee to users of the Services. Notwithstanding the foregoing, XKlaim is not required to host, index, or display any of Your User Generated Content, and may remove or refuse to host, index or display any of Your User Generated Content. XKlaim is not responsible for any loss, theft, intellectual property infringement or damage of any kind to Your User Generated Content.
5.2 Your use of the Services to generate, submit or post User Generated Content confirms Your representation and warranty that You possess all necessary legal rights, power and authority to grant to XKlaim and its affiliates and Third-Party Distributors the foregoing license. You further represent, warrant and agree that Your User Generated Content will not violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights, and will not contain false, intentionally misleading, libelous, defamatory or otherwise unlawful statements.
5.3 XKlaim is under no obligation to review any User Generated Content submitted, posted or otherwise displayed through the Services and assumes no responsibility or liability relating to any such User Generated Content. You may not imply that any User Generated Content is in any way sponsored or endorsed by XKlaim or its affiliates.
5.4 By providing Your User Generated Content to XKlaim, you represent and warrant to XKlaim the following: (a) you are at least 18 years of age if you are a natural person; (b) all of the information comprising Your User Generated Content is correct and current; (c) Your User Generated Content isn't, in whole or in part, pornographic or obscene; (d) you hold and will continue to hold the necessary rights, including but not limited to all copyrights, trademark rights and rights of publicity in and to Your User Generated Content; (e) you have the legal right and authority to grant the rights and licenses described herein; (f) Your User Generated Content and the rights and licenses granted to XKlaim under this Agreement and XKlaim's authorized use of Your User Generated Content (including the public display, public performance, distribution and reproduction of Your User Generated Content) do not and will not: (i) violate any applicable law, statute, ordinance or regulation; and (ii) breach any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort or contract theories; and (g) Your User Generated Content does not and will not violate or encourage violation of any applicable law, statute, ordinance or regulation.
5.5 XKlaim reserves the right, but not the obligation, in its sole discretion to investigate and take appropriate legal action and/or to refuse to post or remove any User Generated Content (or any portion thereof) that is illegal or prohibited on/through the Services and terminating or blocking your use of the Services. The following is a partial list of the kind of User Generated Content that is prohibited - User Generated Content that: (a) is false or intentionally misleading; (b) is patently offensive to users of the Site, such as content or messages that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (c) harasses or advocates harassment of another person; (d) involves the transmission of unsolicited mass mailing or "spamming"; (e) is unlawful or promotes illegal activities or conduct that is abusive; (f) violates the copyright, trademark or any other proprietary right of any third party; (g) falsely expresses or implies that such content or material is sponsored or endorsed by XKlaim or its' suppliers or that otherwise falsely misrepresents the origin of the content; (h) is threatening, obscene, defamatory or libelous or violates the right of privacy or the right of publicity of any person; (i) is pornographic or sexually explicit in nature; or (j) seeks or recommends providers of material that exploits people under the age of 18 in a sexual or violent manner, or seeks or recommends providers that solicit personal information from anyone under 18. Any violation to upload such prohibited content through inappropriate images or suggestive messages will be immediately sent to authorities.
5.6 The Mobile Application and Services may now, or in the future, in conjunction with Your Mobile Device, possess voice recognition capabilities and enable the creation and utilization of voice commands, content and feedback. Any audible input, commands, content and feedback shall be deemed User Generated Content. You hereby agree, acknowledge, and consent to XKlaim's right to record any audible responses and utterances made by You in connection with Your use of the Mobile Application and Services and to use those audible responses and utterances for the following purposes: (a) identifying common speech patterns, word choices and manners of speech that affect the Services; (b) maxKlaimng audible responses and utterances to a business listing database; and (c) performing tests and taking other actions to improve the quality, usability and effectiveness of the Services and to develop marketing strategies and intelligence for various products and uses.
6. THIRD PARTY PROVIDER CONTENT AND SERVICES.
Some of the information, materials, content, features, functionality and/or uses to which You may have access by using the Services are owned or provided by third parties (collectively "Third Party Content Provider(s)"). It is Your responsibility to monitor when You have accessed any such content or uses that is not part of the Services (collectively, the "Third Party Provider Content and Service(s)") and We do not undertake any obligation to expressly notify You when You are accessing any Third Party Provider Content and Services that are not part of the Services. For example, if you download an app written to XKlaim API's you may be accessing and/or using Third Party Provider Content and Services from a Third Party Content Provider. XKlaim makes no representations whatsoever concerning: (a) the information, products, services or other material appearing on, or accessible through, any Third Party Provider Content and Services; (including, without limitation, the quality, safety and legality of such products or uses or the sale thereof), or (b) the sellers of any products, services or uses advertised or sold on or through any Third Party Content Provider and Services. XKlaim shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with Your use of Third Party Provider Content and Services or Your reliance on any such Third Party Content Provider content, goods or uses, available on or through any Third Party Provider Content and Services.
7. WARRANTY DISCLAIMER.
7.1 Any use of the Mobile Application, the Services, reliance upon any of the Material, and any use of the Internet generally shall be at Your sole risk. XKlaim disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, and licensure of Third Party Content Providers, reliability, operability or availability of information or Material accessible by use of the Services.
7.2 THE SERVICES (INCLUDING MATERIAL AND INFORMATION POSTED AND ACCESSIBLE THEREWITH) ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. XKLAIM DISCLAIMS, TO THE FULLEST EXTENT PERMITTED UNDER LAW, ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE MOBILE APPLICATION, SERVICES AND MATERIAL. XKLAIM DOES NOT WARRANT THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE MOBILE APPLICATION, SERVICES, MATERIAL, OR THE INTERNET GENERALLY, IS FREE OF VIRUSES, ERRORS, OTHER HARMFUL COMPONENTS, OR WILL BE UNINTERRUPTED. XKLAIM DOES NOT WARRANT THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED.
7.3 XKLAIM DISCLAIMS, TO THE FULLEST EXTENT PERMITTED UNDER LAW, ANY AND ALL WARRANTIES, REPRESENTATIONS AND ENDORSEMENTS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES FOR ANY INFORMATION, GOODS, OR SERVICES, OBTAINED THROUGH, ADVERTISED, ACCESSIBLE OR RECEIVED THROUGH ANY LINKS PROVIDED BY OR THROUGH USE OF THE SERVICES; OR REGARDING THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE MOBILE APPLICATION, SERVICES AND MATERIAL. NO ADVICE OR INFORMATION PROVIDED BY XKLAIM, ITS AFFILIATES, OR THEIR RESPECTIVE EMPLOYEES AND AGENTS SHALL CREATE ANY WARRANTY.
7.4 XKLAIM, ITS AFFILIATES AND ANY ASSOCIATED MOBILE DEVICE PLATFORM AND SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES REGARDING: (A) THE OPERATION OR PERFORMANCE OF THE MOBILE APPLICATION, SERVICES, OR ANY THIRD PARTY PROVIDER CONTENT OR SERVICES; (B) THE NATURE, CONTENT OR ACCURACY (EITHER WHEN ACCESSED OR AS A RESULT OF THE PASSAGE OF TIME) OF ANY INFORMATION, MATERIAL, APPARATUS OR OTHER PROCESS CONTAINED ON, DISTRIBUTED THROUGH, OR LINKED, DOWNLOADED OR ACCESSED FROM THE MOBILE APPLICATION (INCLUDING WITHOUT LIMITATION, THOSE ACCESSED USING THIRD PARTY PROVIDER CONTENT OR SERVICES); (C) ANY PRODUCTS OR SERVICES PURCHASED THROUGH USE OF ANY THIRD PARTY PROVIDER CONTENT OR USE, OR ANY PRODUCTS OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF AN ADVERTISEMENT, PROMOTION, OR OTHER INFORMATION OR MATERIAL IN CONNECTION WITH ANY MOBILE APPLICATION; OR (D) THE INTERNET GENERALLY.
7.5 SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION AND THAT MAY NOT BE LIMITED BY THESE TERMS, PROVIDED HOWEVER YOU AGREE AND ACKNOWLEDGE THAT TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOU WAIVE ANY SUCH STATUTORY RIGHTS WITH RESPECT TO IMPLIED WARRANTIES.
7.6 ANY LOCATION-BASED SERVICES ARE INTENDED ONLY FOR INDIVIDUAL USE AND SHOULD NOT BE USED OR RELIED ON AS AN EMERGENCY LOCATOR SYSTEM, USED WHILE DRIVING OR OPERATING VEHICLES, OR USED IN CONNECTION WITH ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OR INACCURACY OF THAT APPLICATION OR THE MOBILE APPLICATION OR SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE.
7.7 NEITHER XKLAIM, NOR ANY OF ITS ASSOCIATED MOBILE DEVICE PLATFORM AND SERVICE PROVIDERS, WARRANTS THAT THE MOBILE APPLICATION WILL BE COMPATIBLE OR INTEROPERABLE WITH YOUR MOBILE DEVICE OR ANY OTHER PIECE OF HARDWARE, SOFTWARE, EQUIPMENT OR DEVICE INSTALLED ON OR USED IN CONNECTION WITH YOUR MOBILE DEVICE. FURTHERMORE, YOU ACKNOWLEDGE THAT COMPATIBILITY AND INTEROPERABILITY PROBLEMS CAN CAUSE THE PERFORMANCE OF YOUR MOBILE DEVICE TO DIMINISH OR FAIL COMPLETELY, AND MAY RESULT IN PERMANENT DAMAGE TO YOUR MOBILE DEVICE, LOSS OF THE DATA LOCATED ON YOUR MOBILE DEVICE, AND CORRUPTION OF THE SOFTWARE AND FILES LOCATED ON YOUR MOBILE DEVICE. YOU ACKNOWLEDGE AND AGREE THAT XKLAIM AND ITS AFFILIATES, PARTNERS, SUPPLIERS, LICENSORS, AND ASSOCIATED MOBILE DEVICE PLATFORM AND USE PROVIDERS SHALL HAVE NO LIABILITY TO YOU FOR ANY LOSSES SUFFERED RESULTING FROM OR ARISING IN CONNECTION WITH COMPATIBILITY OR INTEROPERABILITY PROBLEMS.
8. LIMITATION OF LIABILITY.
8.1 IN NO EVENT SHALL XKLAIM OR ANY OF ITS ASSOCIATED MOBILE DEVICE PLATFORM AND SERVICE PROVIDERS BE LIABLE TO YOU OR ANY USER ON ACCOUNT OF YOUR OR SUCH USER'S USE, MISUSE OR RELIANCE ON THE MOBILE APPLICATION AND THE SERVICES FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, SPECIAL, PUNITIVE, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, REVENUE, USE, OR DATA WHETHER BROUGHT IN WARRANTY, CONTRACT, INTELLECTUAL PROPERTY INFRINGEMENT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY, EVEN IF XKLAIM OR ANY OF ITS ASSOCIATED MOBILE DEVICE PLATFORM AND SERVICE PROVIDERS ARE AWARE OF OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL XKLAIM OR ANY OF ITS ASSOCIATED MOBILE DEVICE PLATFORM AND SERVICE PROVIDERS BE LIABLE TO YOU OR ANY USER FOR: (A) THE USE (OR INABILITY TO USE) OR PERFORMANCE OF THE SERVICES; (B) THE MATERIAL OR THE INTERNET GENERALLY; (C) RELIANCE UPON OR PERFORMANCE OF ANY MATERIAL CONTAINED IN OR ACCESSED FROM ANY MOBILE APPLICATION OR ANY THIRD PARTY PROVIDER CONTENT OR SERVICE; OR (D) ANY PRODUCTS OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF AN ADVERTISEMENT, PROMOTION, OR OTHER INFORMATION OR MATERIAL ACCESSED USING THE MOBILE APPLICATION. NEITHER XKLAIM, NOR ANY OF ITS ASSOCIATED MOBILE DEVICE PLATFORMS OR SERVICE PROVIDERS, ASSUMES ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, TIMELINESS OR USEFULNESS OF ANY INFORMATION, APPARATUS, PRODUCT OR PROCESS OR OTHER MATERIAL ACCESSIBLE FROM THE MOBILE APPLICATION.
8.2 THE USER OF THE SERVICES ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THE SERVICES GENERALLY.
8.3 THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, OR IF IT IS OTHERWISE DEEMED UNENFORCEABLE, AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM: (A) BREACH OF CONTRACT; (B) BREACH OF WARRANTY; (C) NEGLIGENCE; OR (D) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSIONS AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW.
8.4 SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO ALL USERS; IN SUCH STATES LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
8.5 WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, XKLAIM'S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00).
9.1 You agree to indemnify and hold Us and, as applicable, Our parent, subsidiaries, affiliates, partners, officers, directors, agents and employees, licensors, suppliers and Third Party Content Providers, harmless from any claim or demand, including any and all losses, liabilities, claims, demands, damages, costs or expenses, causes of action, suits, proceedings, judgments, awards, executions, and liens, including reasonable attorneys' fees and costs, whether brought by third parties or otherwise, due to or arising out of: (a) Your breach of any representation, warranty, covenant or obligation set forth in this License (or any other violation of Your agreement with XKlaim on the basis of this License); (b) Your use or misuse of any location information; (c) any information, User Generated Content or other material transmitted, submitted or provided by You through the Services, including Your use of the Services to provide a link to another website or to upload content or other information using the Mobile Application and, without limitation, Our exercise of Our rights with respect to such information; (d) Your violation of any law, or Your violation of the rights of a third party, including the infringement by You of any intellectual property or other right of any person or entity; (e) Your use of any User Generated Content or Third Party Provider Content and Services including, without limitation: (i) any information, software or other material viewed or accessed by You through any Third Party Provider Content and Services (including without limitation, any advertisement for products or services using any Third Party Provider Content and Services); (ii) any transactions initiated or conducted by You through any Third Party Provider Content and Services (including, without limitation, any taxes associated therewith and any use by third parties of Your credit card information); (iii) any products or services that You purchase or otherwise obtain through any Third Party Provider Content and Services (including, without limitation, the quality, safety and legality of such products or uses or the sale thereof); and (iv) the conduct of sellers of any products or services that You purchase or otherwise obtain through any Third Party Provider Content and Use). The foregoing indemnity obligations will survive any termination of this License.
9.2 XKlaim reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You, which will not excuse Your indemnity obligations under this Section. You agree not to settle any matter subject to the forgoing indemnification obligations without the express consent and approval of XKlaim.
10. DIGITAL MILLENNIUM COPYRIGHT COMPLAINTS. If You reasonably believe that any Material on the Sites contains unauthorized reproductions of Your copyrighted work or otherwise infringes an exclusive copyright right, and You reasonably believe it is appropriate to notify Us to take any action/and You want Us to take any action, then, as required under the Digital Millennium Copyright Act (17 U.S.C. sec. 512), ("DMCA") You must promptly provide in writing the following information:
- Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single on-line site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Us to locate the material;
- Information reasonably sufficient to permit Us to contact You, such as Your name, address, telephone number, and e-mail address;
- Include the following statement: "I have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.";
- Include the following statement: "The information in this notice is accurate, and under penalty of perjury, I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."; and
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
Send the written communication to:
1325 Howard Ave. Ste. 258
Burlingame, California 94010
or fax to: (866) 344-3927 Attn: DMCA Complaints
NOTHING IN THIS SECTION 10. IS INTENDED TO EXPAND OR SUPPLEMENT THE LEGAL RIGHTS, PROCEDURES AND REMEDIES AUTHORIZED AND GRANTED UNDER DMCA AND WE DO NOT REPRESENT ANY RELATED UNDERTAKING BY XKLAIM NOT OTHERWISE EXPRESSLY REQUIRED BY APPLICABLE LAW.
11. TERMINATION. XKlaim may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this License and the rights afforded to You hereunder with or without prior notice. Furthermore, if We determine in Our sole discretion that You have violated or failed to comply with any terms and conditions of this License, then this License and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by XKlaim. Upon the termination of this License, You shall cease all use of the Services and uninstall the Mobile Application from Your Mobile Device. XKlaim reserves the right to terminate or disable all or any portion of the Mobile Application via update of the Mobile Application.
12. CLAIMS AND DISPUTES.
12.1 Legal Disputes. You and XKlaim agree that any claim or dispute at law or equity that has arisen or may arise between us will be resolved in accordance with the provisions set forth in this Claims and Disputes Section. Please read this Section carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.
12.2 Applicable Law. You agree that the laws of the State of California, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and XKlaim, except as otherwise stated in this User Agreement.
12.3 Agreement to Arbitrate. We both each agree that any and all disputes or claims that have arisen or may arise between us shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
12.4 Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND XKLAIM AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER XKLAIM USERS.
12.5 Arbitration Procedures. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAA's website at www.adr.org. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or XKlaim may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and XKlaim subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or XKlaim, unless the arbitrator requires otherwise. ?The arbitrator will decide the substance of all claims in accordance with the laws of the State of Utah, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different XKlaim users, but is bound by rulings in prior arbitrations involving the same XKlaim user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
12.6 Costs of Arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, XKlaim will pay all filling, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by XKlaim should be submitted by mail to the AAA along with your Demand for Arbitration and XKlaim will make arrangements to pay all necessary fees directly to the AAA. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, XKlaim will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse XKlaim for all fees associated with the arbitration paid by XKlaim on your behalf, which you otherwise would be obligated to pay under the AAA's rules.
12.7 Opt-Out Procedure. You can choose to reject this Agreement to Arbitrate ("opt-out") by mailing us a written opt-out notice ("Opt-Out Notice"). You must mail the Opt-Out Notice to:
1325 Howard Ave. Ste. 258
Burlingame, California 94010
The Opt-Out Notice must state that you do not agree to this Agreement to Arbitrate and must include your name, address, and the user ID(s) and email address(es) associated with the Your Account. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt-out of the Agreement to Arbitrate. If you opt-out of the Agreement to Arbitrate, all other parts of the License will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
12.8 Judicial Forum for Legal Disputes. Unless we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to You or to a particular claim or dispute, either as a result of your decision to opt-out of the Agreement to Arbitrate or a court order, You agree that any claim or dispute that has arisen or may arise between you and XKlaim must be resolved exclusively by a state or federal court located in San Francisco County, CA. You and XKlaim agree to submit to the personal jurisdiction of the courts located within San Francisco County, CA for the purpose of litigating all such claims or disputes.
12.9 Limited Time to Bring Claim. You acknowledge and agree that that it is the intent of both You and XKlaim to limit the period of time a claim may be filed, even if the period is shorter than that fixed by the statute of limitations. You therefore agree that any claim or dispute arising out of or related to the Services must be arbitrated (or if the Agreement to Arbitrate above is found not to apply to You or to a particular claim or dispute, that any cause of arising out of or related to the Services must be commence), within one (1) year after the claim or dispute first occurs (or cause of action accrues), otherwise such claim or dispute (or cause of action), is permanently barred.
13.1 You are responsible for compliance with applicable laws, regulations and ordinances related to Your use of the Services. Your compliance with applicable laws is not limited to jurisdictions within the United States (including U.S. Federal law) but also the laws, regulations and ordinances of any jurisdiction from which You access the Services.
13.2 This License will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions or Your actual state or country of residence, and You agree to submit to personal jurisdiction in San Francisco County, California. You agree to exclude, in its entirety, the application to this License of the United Nations Convention on Contracts for the International Sale of Goods.
13.3 Any notices required to be given under this License shall be given in writing and shall be delivered to the following address:
1325 Howard Ave. Ste. 258
Burlingame, California 94010
13.4 Except as expressly stated herein, this License constitutes the entire agreement between You and XKlaim with respect to Your use of the Services, and it supersedes and replaces all prior or contemporaneous communications, proposals, understandings or agreement, whether electronic, oral or written, between You and XKlaim with respect to Your use of the Services and/or the subject matter of this License.
13.5 Except as provided in this Section 13.5, nothing contained in this License is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person. Notwithstanding the foregoing, You acknowledge and agree that each of XKlaim's associated mobile device platform and use providers are third party beneficiaries to this License, and that, upon Your acceptance of the terms and conditions of this License, such associated mobile device platform and use providers will have the right to enforce this License against You in its capacity as a third party beneficiary to this License.
13.6 Any waiver of any provision of this License will be effective only if in writing and signed by You and XKlaim. Our failure to enforce Our rights and remedies available to Us with respect Your breach of this License shall not constitute a waiver of such breach nor of any prior, concurrent, or subsequent breach of the same or any other provision of this License.
13.7 You may not assign this License or otherwise transfer Your obligations or interests under this License, in whole or in part; any attempt to do so shall be void.
13.8 If for any reason a court of competent jurisdiction finds any provision of this License to be invalid or unenforceable, that provision will be superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of the License will continue in effect and remain fully enforceable.
14. USAGE RULES, ADDITIONAL OBLIGATIONS/RIGHTS RELATED TO YOUR MOBILE DEVICE.
14.1 Without limitation, Your use of the Services with a Palm® smartphone or via download from any website operated by Palm, Inc. is subject to Usage Rules established by Palm, Inc. which are incorporated herein by this reference. You may not imply that any User Generated Content is any way sponsored or endorsed by Palm, Inc.
14.2 Without limitation, Your use of the Services with a BlackBerry® smartphone or via download from any website operated by Research in Motion Limited is subject to Usage Rules established by Research in Motion Limited, which are incorporated herein by this reference. You may not imply that any User Generated Content is any way sponsored or endorsed by Research in Motion Limited.
14.3 Without limitation, Your use of the Mobile Application and Services with any Apple® device, including iPhone®, iPod touch® and iPad™ mobile digital device, is subject to the Usage Rules established by Apple Inc., including those terms set forth in the App Store Terms and Conditions located at http://www.apple.com/legal/itunes/ww/, the applicable provisions of which are incorporated herein by this reference. In the event of any failure of the Mobile Application to conform to any applicable warranty, You may notify Apple Inc. and Apple Inc. will refund to You the purchase price for the Mobile Application, if any; and, to the maximum extent permitted by applicable law, Apple Inc. will have no other warranty obligation whatsoever to You with respect to the Mobile Application. Apple Inc. is not liable for any claims by You or any third party relating to the Mobile Application, or Your possession or Your use of the Mobile Application, including, but not limited to, (a) any product liability claims; (b) any claim that the Mobile Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
Without limitation, Your use of the Mobile Application and Service with any Android device, including but not limited to is subject to the Usage Rules established by Google Inc., including those terms set forth in the App Store Terms and Conditions located at http://www.google.com/intl/en/policies/ the applicable provisions of which are incorporated herein by this reference. In the event of any failure of the Mobile Application to conform to any applicable warranty, You may notify Google Inc. and Google Inc. will refund to You the purchase price for the Mobile Application, if any; and, to the maximum extent permitted by applicable law, Google Inc. will have no other warranty obligation whatsoever to You with respect to the Mobile Application. Google Inc. is not liable for any claims by You or any third party relating to the Mobile Application, or Your possession or Your use of the Mobile Application, including, but not limited to, (a) any product liability claims; (b) any claim that the Mobile Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
14.4 Without limitation, Your use of the Mobile Application and Services with any Android® powered mobile digital device, is subject to the Usage Rules established by Google, Inc., which are incorporated herein by this reference. You may not imply that any User Generated Content is any way sponsored or endorsed by Google, Inc.
14.5 Without limitation, Your use of the Mobile Application and Services with any Windows® 8, Windows® Mobile or Windows® Phone powered mobile digital device, is subject to the Usage Rules established by Google, Inc., which are incorporated herein by this reference. You may not imply that any User Generated Content is any way sponsored or endorsed by Google, Inc.
15. THIRD PARTY SOFTWARE NOTICES.
15.1 Portions of the Mobile Application are provided with notices and open source licenses from such communities and third parties that govern the use of those portions, and any licenses granted pursuant to this License do not alter any rights and obligations You may have under such open source licenses, however, the disclaimer of warranty and limitation of liability provisions in this License will apply to all elements of the Services.
15.2 All brand and product names are or may be trademarks of, and are used to identify products or uses of, their respective owners.