Material Terms: As provided in greater detail in the Terms (and without limiting the express language of the terms and conditions below), You agree and acknowledge that the Terms includes, the following material terms:
• the App is licensed, not sold to You, and that You may use the Service only as set forth in the TERMS;
• the use of the Service, which will involve significant data transfer, may be subject to separate third party terms of service and fees, including without limitation Your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are Your sole responsibility;
• the Service, including the App, are provided “as is” without warranties of any kind and XTRA IQ’s liability to You is limited;
• the App may require access to the following services on Your mobile device: UDID, MAC address, or other applicable device identifier, phone state and identity, location, and internet and data services; and
• if You are using the App on an iOS-based device, You agree to and acknowledge the “Notice Regarding Apple”, below.
1. Scope of License. The App is licensed, not sold, to You for use only in accordance with the Terms. XTRA IQ reserves all rights not expressly granted to You. Subject to Your complete and ongoing compliance with the terms and conditions of the Terms, XTRA IQ hereby grants You a limited, revocable, non-transferable license to use the App on any compatible device that You own or control, solely for Your own use. You may not modify, alter, reproduce, distribute, or make the App available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute, or sublicense the App. You may not Yourself, or authorize, direct, or cause a third party to, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or Third Party Terms (as defined below)), nor attempt to disable or circumvent any security or other technological measure designed to protect the App or any content available through the App. If You breach these license restrictions, or otherwise exceed the scope of the licenses granted in the Terms, You may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights. The Terms will govern any updates provided to You by XTRA IQ that replace or supplement the original App, unless such upgrade is accompanied by a separate license in which case the terms of that separate license will govern.
3. Eligibility. You must be at least 13 years of age to use the Service. By agreeing to these Terms, You represent and warrant to us: (a) that You are at least 13 years of age; (b) that You have not previously been suspended or removed from the Service; and (c) that Your registration and Your use of the Service is in compliance with any and all applicable laws and regulations. If You are using the Service on behalf of an entity, organization, or company, You represent and warrant that You have the authority to bind such organization to these Terms and You agree to be bound by these Terms on behalf of such organization.
4. Accounts and Registration. To access most features of the Service, You must register for an account. When You register for an account, You may be required to provide us with some information about Yourself (such as Your e-mail address or other contact information). You agree that the information You provide to us is accurate and that You will keep it accurate and up-to-date at all times. When You register, You will be asked to provide a password. You are solely responsible for maintaining the confidentiality of Your account and password. You agree to accept responsibility for all activities that occur under Your account. If You have reason to believe that Your account is no longer secure, then You must immediately notify us at email@example.com.
5. Payment. Access to the Service, or to certain features of the Service, may require You to pay fees. Before You are required to pay any fees, You will have an opportunity to review and accept the applicable fees that You will be charged. All fees are in U.S. Dollars and are non-refundable. XTRA IQ may change the fees for the Service or any feature of the Service, including by adding additional fees or charges, on a going-forward basis at any time. XTRA IQ will charge the payment method You specify at the time of purchase. You authorize XTRA IQ to charge all sums described herein to such payment method, and continue to charge You if You signed up for a subscription service with recurring fees. If You pay any applicable fees with a credit card, XTRA IQ may seek pre-authorization of Your credit card account prior to Your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Your purchase. If You enroll in a subscription service (whether through us or through a third-party such as the iOS App Store or Google Play), the subscription service charges may auto-renew, unless You turn off auto-renew or terminate You subscription service. If You signed up for a subscription service with a third-party, You must manage that subscription and billing with that third-party.
6. Third-Party Materials.
6.1 Certain portions of the Service may include, display, or make available content, data, information, applications or materials from third parties, including other users of the Service (“Third Party Materials”). You understand that by using the Service, You may encounter Third Party Materials and other content (collectively, “Content”) that may be deemed offensive, indecent, or objectionable, which Content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, You agree to use the Service at Your sole risk and that XTRA IQ shall not have any liability to You for Content that may be found to be offensive, indecent, or objectionable, or that is inaccurate, incomplete, untimely, invalid, illegal, indecent, of poor quality, or otherwise.
6.2 You agree and understand that the Service contains proprietary content, information, and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary content, information or materials except for permitted use of the Service. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, and You shall not exploit the Service in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Service in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that XTRA IQ is not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using the Service.
6.3 In addition, third party services and Third Party Materials that may be accessed from, displayed on or linked to from Your device are not available in all languages or in all countries. XTRA IQ makes no representation that such services and materials are appropriate or available for use in any particular location. To the extent You choose to access such services or materials, You do so at Your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. XTRA IQ, and its licensors, reserve the right to change, suspend, remove, or disable access to such services at any time without notice. In no event will XTRA IQ be liable for the removal of or disabling of access to any such services. XTRA IQ may also impose limits on the use of or access to certain services, in any case and without notice or liability.
7. User Content
7.1 User Content. The Service may include features that enable You to upload certain materials or information from Your device to XTRA IQ, to enable certain processing of those materials by XTRA IQ, and to share them with Your contacts and others. You agree that You are solely responsible for, and assume all liability and consequences regarding, the photos, video, audiovisual, audio, text, data, and other content and materials that You submit through the Service along with all associated meta data (which may include without limitation Your device type, as well as date, time, application and location data associated with the creation or submission or a particular piece of content) (collectively “User Content”). You agree not to submit User Content that: (a) is or could be interpreted to be inaccurate, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, hateful, or promotes discrimination, bigotry, racism, or hatred, as determined by XTRA IQ in its sole discretion; or (b) introduces viruses, time-bombs, worms, cancelbots, trojan horses or other harmful code.
7.2 Ownership and License. You retain ownership of all of Your rights in Your User Content and XTRA IQ does not obtain any ownership of rights in Your User Content, but in order for XTRA IQ to provide the Service we need certain permission from You. Accordingly, You hereby grant XTRA IQ a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license, without obligation, to use, reproduce, distribute, publish, display, perform, transmit, stream, broadcast, modify and otherwise utilize Your User Content and modifications and derivatives thereof (including without limitation the right to include, append, integrate, embed, or incorporate advertising, and to format or otherwise adapt Your User Content as necessary or useful to conform to the requirements, limitations, or capabilities of the various formats, networks, devices, services, and media to which Your User Content may be implemented) in connection with providing the Service to XTRA IQ’s (and its successors’ and affiliates’) users.
7.3 Your Promises to XTRA IQ. You represent, warrant, and covenant that: (a) You either are the sole and exclusive owner of all User Content that You submit to the Service, or You have all rights, licenses, consents and releases that are necessary to grant to XTRA IQ the rights in that User Content as contemplated under the Terms; (b) User Content is not proprietary or confidential information; and (c) neither the User Content You submit to the Service nor Your creation of, accessing, posting, submission or transmission of such User Content or XTRA IQ’s exercise of the rights granted above to such User Content (or any portion thereof) will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights, constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including without limitation restrictions on obscenity, child pornography, wire tap laws or other similar restrictions on nonconsensual recording, or otherwise), or give rise to any right of payment of any amounts to any third party.
7.4 User Content Disclaimer. We are under no obligation to edit or control User Content that You or other users post or publish, and will not be in any way responsible or liable for User Content. XTRA IQ may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service You will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies You have or may have against XTRA IQ with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, XTRA IQ does not permit copyright-infringing activities on the Service.
8. Digital Millennium Copyright Act
8.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If You have any complaints with respect to material posted on the Service, You may contact our Designated Agent at the following address:
XTRA IQ, Inc. – DMCA Agent
14128 Dorene Court Saratoga
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that You claim has been infringed;
c. a description of the material that You claim is infringing and where it is located on the Service;
d. Your address, telephone number, and email address;
e. a statement by You that You have a good faith belief that the use of the materials on the Service of which You are complaining is not authorized by the copyright owner, its agent, or the law; and f. a statement by You that the above information in Your notice is accurate and that, under penalty of perjury, You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
8.2 Repeat Infringers. XTRA IQ will promptly terminate without notice the accounts of users that are determined by XTRA IQ to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had User Content removed from the Service more than twice.
9. Prohibited Conduct. Your rights to use the Service are expressly conditioned on Your agreement not to:
9.1 use the Service for any purpose other than as solely permitted by the provided functionality of the Service and these Terms;
9.2 use the Service for any illegal purpose, or in violation of any local, state, national, or international law;
9.3 unless expressly permitted, copy, reproduce, distribute, publish, display, perform, transmit, stream, broadcast, modify, create derivative works of, sell, license or in any way exploit any part of the Service;
9.4 violate the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
9.5 post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
9.6 bypass or interfere with any security or other features of the App or the Service designed to control the manner in which the App or the Service is used, harvest or mine Content from the Service (including User Content), or otherwise access or use the Service in a manner inconsistent with individual human usage.
9.7 interfere with the operation of the Service or any user’s enjoyment of the Service, including without limitation by (a) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (b) making unsolicited offers or advertisements to other users of the Service, (c) attempting to collect, personal information about users or third parties without their consent; or (d) interfering with or disrupting any non-public areas of the Service, or networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
9.8 to use, display, mirror, frame or utilize framing techniques to enclose the Service or the Content, or any portion thereof, unless and solely to the extent XTRA IQ makes available the means for embedding any part of the Service or the Content.
9.9 perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, or falsifying Your age or date of birth;
9.10 sell or otherwise transfer the access granted herein or any Materials (as defined in Section 16 below) or any right or ability to view, access, or use any Materials; or
9.11 attempt to do any of the foregoing in this Section 9, or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section 9.
10. Third-Party Services and Linked Websites. XTRA IQ may provide tools through the Service that enable You to export information, including User Content, to third party services, including through features that allow You to link Your account on XTRA IQ with an account on the third party service, such as Twitter or LinkedIn, or through our implementation of third party buttons (such as “like” or “share” buttons). By using these tools, You agree that we may transfer such information to the applicable third-party service. Such third party services are not under our control, and we are not responsible for their use of Your exported information. The Service may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
11. Third Party Software. The software You download consists of a package of components, including certain third party software (“Third Party Software” and together with the App, the “Package”) provided under separate license terms (the “Third Party Terms”), as described in more detail at the bottom of this EULA. Your use of the Third Party Software in conjunction with the App in a manner consistent with the terms of this EULA is permitted, however, You may have broader rights under the applicable Third Party Terms and nothing in this EULA is intended to impose further restrictions on Your use of the Third Party Software.
12. Location Based Services. Some of the features of the App enable XTRA IQ to tailor Your experience based on Your location (“Location-based Services”), such as to suggest information about businesses that are near Your current location or which are near locations You frequently visit. If You choose to disable location-based services on Your device or to the App, You will not be able to utilize certain features of the App or other Services. By authorizing XTRA IQ to access Your location or media files containing location based meta data, You agree and acknowledge that (i) location data we collect from You is directly relevant to Your use of the App or the applicable Service and (ii) XTRA IQ may, for so long as You allow XTRA IQ to access such location data or meta data, provide Location-based Services related to Your then-current location. PLEASE NOTE THAT LOCATION DATA MAY NOT BE ACCURATE, WHETHER COLLECTED ORIGINALLY BY THE APP, AND XTRA IQ DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION DATA AND LOCATION BASED SERVICES.
13. Termination of Use; Discontinuation and Modification of the Service. If You violate any provision of these Terms, Your permission to use the Service will terminate automatically. Additionally, XTRA IQ, in its sole discretion may terminate Your user account on the Service or suspend or terminate Your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to You. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of Your access to or use of the Service. You may terminate Your account at any time by contacting customer service at firstname.lastname@example.org, and any pre-paid fees for the Service will not be refunded to You. If You terminate Your account, You will remain obligated to pay all outstanding fees, if any, relating to Your use of the Service incurred prior to termination, and if you signed up for any paid services, such as a subscription service, through a third party, you should confirm with the third party that your subscription or other services with a recurring fee have been cancelled, or otherwise instruct the third party to cancel any paid services processed by that third party.
14. Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to on the Service (the “Additional Terms”), such as separate end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the Service, subject to Section 15 below. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
15. Changes to the Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies Your rights or obligations, we will make reasonable efforts to notify You of such change. We may provide notice through a pop-up or banner within the Service, by sending an email to any address You may have used to register for an account, or through other mechanisms. Additionally, if the changed Terms materially modify Your rights or obligations, we may require You to provide consent by accepting the changed Terms. If we require Your acceptance of the changed Terms, changes are effective only after Your acceptance. If You do not accept the changed Terms, we may terminate Your access to and use of the Service. All other changes are effective upon publication of the changed Terms. Disputes arising under these Terms will be resolved in accordance with the Terms in effect that the time the dispute arose.
16. Ownership; Proprietary Rights. The Service is owned and operated by XTRA IQ. The App, Content visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by XTRA IQ are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of XTRA IQ or third-party licensors. Except as expressly authorized by XTRA IQ, You may not make use of the Materials. XTRA IQ reserves all rights to the Materials not granted expressly in these Terms.
17. Feedback. While we are continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If You choose to contribute by sending XTRA IQ or our employees or other staff any ideas for products, services, features, modifications, enhancements, refinements, technologies, content offerings, promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, computer code, or other materials (collectively “Feedback”), then regardless of what Your accompanying communication may say, the following terms shall apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to XTRA IQ, You agree that:
17.1 XTRA IQ has no obligation to review, consider, or implement Your Feedback, or to return to You all or part of any Feedback for any reason;
17.2 Feedback is provided on a non-confidential basis, and XTRA IQ is not under any obligation to keep any Feedback You send confidential or to refrain from using it in any way; and 17.3 You irrevocably grant XTRA IQ and its successors and assigns perpetual and unlimited permission to use, reproduce, modify, and distribute, display, and perform Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services which incorporate or embody Feedback whether in whole or in part, and whether as provided or as modified.
18. Indemnity. You agree that You will be responsible for Your use of the Service, and You agree to defend, indemnify, and hold harmless XTRA IQ and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “XTRA IQ Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (a) Your access to, use of, or alleged use of the Service; (b) Your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (c) Your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (d) any disputes or issues between You and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You (and without limiting Your indemnification obligations with respect to such matter), and in such case, You agree to cooperate with our defense of such claim.
19. Disclaimers; No Warranties
THE PACKAGE, THE SERVICE, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE XTRA IQ ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, COMPLETENESS, OR NON-INFRINGEMENT; AND (B) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE XTRA IQ ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE XTRA IQ ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
20. Limitation of Liability IN NO EVENT WILL THE XTRA IQ ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE XTRA IQ ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. YOU AGREE THAT THE AGGREGATE LIABILITY OF THE XTRA IQ ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (a) THE AMOUNTS YOU HAVE PAID TO XTRA IQ FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (b) $100. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 20 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21. THIRD PARTY DISPUTES. XTRA IQ IS NOT AFFILIATED WITH ANY CARRIER, OR SERVICE PROVIDER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, OR OTHER THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY OTHER USER OF THE XTRA IQ SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE XTRA IQ (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
22. Governing Law. These Terms shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, You and XTRA IQ agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating all such disputes.
24. Dispute Resolution and Arbitration
24.1 Generally. In the interest of resolving disputes between You and XTRA IQ in the most expedient and cost effective manner, You and XTRA IQ agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND XTRA IQ ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
24.2 Exceptions. Notwithstanding subsection 24.1, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (a) bring an individual action in small claims court, (b) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (c) seek injunctive relief in a court of law, or (d) to file suit in a court of law to address intellectual property infringement claims.
24.3 Arbitrator. Any arbitration between You and XTRA IQ will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting XTRA IQ.
24.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for You, by electronic mail (“Notice”). XTRA IQ’s address for Notice is: XTRA IQ, Inc., 14128 Dorene Court Saratoga CA 95070. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, You or XTRA IQ may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by You or XTRA IQ shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in Your favor, XTRA IQ shall pay You (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by XTRA IQ in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
24.5 Fees. In the event that You commence arbitration in accordance with these Terms, XTRA IQ will reimburse You for Your payment of the filing fee, unless Your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California, provided that if the claim is for $10,000 or less, You may choose whether the arbitration will be conducted (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephonic hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of Your billing address. If the arbitrator finds that either the substance of Your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, You agree to reimburse XTRA IQ for all monies previously disbursed by it that are otherwise Your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
24.6 No Class Actions. YOU AND XTRA IQ AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both You and XTRA IQ agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
24.7 Modifications. In the event that XTRA IQ makes any future change to this arbitration provision (other than a change to XTRA IQ’s address for Notice), You may reject any such change by sending us written notice within 30 days of the change to XTRA IQ’s address for Notice, in which case Your account with XTRA IQ shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments You reject shall survive.
26. Contact Information. The services hereunder are offered by XTRA IQ, Inc., located at 14128 Dorene Court Saratoga CA 95070. You may contact us by sending correspondence to the foregoing address or by emailing us at email@example.com. If You are a California resident, You may have these Terms mailed to You electronically by sending a letter to the foregoing address with Your electronic mail address and a request for these Terms.
NOTICE REGARDING APPLE. You acknowledge that this EULA is between You and XTRA IQ only, not with Apple, and Apple is not responsible for the App or Service or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App or Service. In the event of any failure of the App or Service to conform to any applicable warranty, then You may notify Apple and Apple will refund the purchase price for the relevant App to You; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App or Service. Apple is not responsible for addressing any claims by You or any third party relating to the App or Service or Your possession and/or use of the App or Service, including, but not limited to: (i) product liability claims; (ii) any claim that the App or Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the App or Service or Your possession and use of the App or Service infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App or Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon Your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against You as a third party beneficiary of this EULA. You hereby represent and warrant that: (a) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) You are not listed on any U.S. Government list of prohibited or restricted parties. If XTRA IQ provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version shall prevail. End of Terms.
THIRD PARTY SOFTWARE This disclosure is not a part of the Terms, and may be updated from time to time by XTRA IQ, Inc. In addition to XTRA IQ’s copyright in the App, the Package contains the following components subject to third party copyrights: