Last Updated Date: June 29, 2015
You must accept these TOU to create a Xensr account and to use the Service. If you do not have an account, you accept these TOU by visiting my.Xensr.com or using any part of the Service. IF YOU DO NOT ACCEPT THESE TOU, DO NOT CREATE AN ACCOUNT, VISIT MY.XENSR.COM OR USE THE SERVICE.
These Terms May Change
Xensr reserves the right, at its sole discretion, to modify, discontinue or terminate the Service or to modify these TOU, at any time and without prior notice. If we modify these TOU, we will post the modification via the Service or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these TOU. By continuing to access or use the Service after we have posted a modification via the Service or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified TOU. You may also be asked to re-acknowledge and re-accept the TOU following any material changes. If the modified TOU are not acceptable to you, your only recourse is to cease using the Service.
Who Can Use Xensr?
You may use the Service if you are over 13 years of age and are not barred from receiving services under applicable law.
Creating an Account
Full use of the Service requires that you create an account by providing us with a valid email address and strong password. You are responsible for all activity that occurs in association with your account. Xensr is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials.
We may need to contact you about your use of the Service. These communications are part of the Service and you may not opt-out from receiving them. You can manage and opt-out from receiving other communications and keep your email address up-to-date from your account settings.
Full use of the Service is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the Service and it is your responsibility to ensure the equipment’s functionality.
Ownership and Intellectual Property
The Service and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these TOU, Xensr and its licensors exclusively own all right, title and interest in and to the Service and Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service or Content.
All trademarks, service marks, logos, trade names and any other proprietary designations of Xensr used herein are trademarks or registered trademarks of Xensr. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Your License to Use the Service
“Content” on the Service means any links, text, graphics, images, music, audio, video, photos, data, information, code, or other materials available on the Service. Subject to your compliance with these TOU, Xensr grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and use the Service, and to access, use, view and print any Content solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service or Content, except as expressly permitted in these TOU. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Xensr or its licensors, except for the licenses and rights expressly granted in these TOU.
Posting Your Content On The Service
Notwithstanding the above, if you submit Content to Xensr for Xensr, in its sole discretion, to consider using for its own purposes, you may be asked to agree to a separate license agreement that will supersede this provision with respect to such Content. You acknowledge and agree that Xensr has no obligation to use any Content that you submit and that you have no obligation to agree to license terms other than those presented in this TOU.
You acknowledge and agree that you are solely responsible for all Content that you make available through the Service. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Content that you make available through the Service or you have all rights, licenses, permissions, consents and releases that are necessary to grant to Xensr the rights in such Content, as contemplated under these TOU; and (ii) neither the Content nor your posting, uploading, publication, submission or transmittal of the Content or Xensr’s use of the Content (or any portion thereof) on, through or by means of the Service or otherwise will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights
You also agree that Your Content will comply with the following community guidelines:
Be respectful of the opinions of others. Even though you might not agree with someone, that doesn’t mean they are wrong or deserve to be belittled. Remember that what works for you may not work for everyone else. Give everyone the same courtesy you would expect in return.
Do not post profane or explicit content.
Do not post profile pictures that might be considered inappropriate.
Do not post communications that could be interpreted as threatening or harassing.
Do not post, advertise, or promote products or services commercially.
Idea or Proposal Submissions/Feedback
For any proposals or ideas that you submit to Xensr, in addition to any other representations or warranties in these TOU, you represent and warrant that you have the right to disclose such ideas or proposal to Xensr and that such disclosure does not violate the rights of any other person or party. You will indemnify and hold harmless and defend Xensr from and against any claims, losses, expenses and liabilities arising from breach by you of the foregoing representation and warranty.
By submitting your idea or proposal you acknowledge and recognize that Xensr may have a number of well-established product lines and is continually busy working on new products, services and technologies, and as such, Xensr may currently or in the future be internally developing proposals, ideas or information or receiving proposals, ideas or information from others that are likely to be similar to the proposals or ideas provided by you. Accordingly, nothing in this TOU shall be construed as a representation or inference that Xensr will not independently develop or authorize the development of products, services or ideas, for itself or for others, that may compete with or be similar to the proposals or ideas you submit. Moreover, Xensr assumes no fiduciary or confidential obligation of any kind with respect to any proposals, ideas or suggestions made by you that relate to Xensr product lines or services. You understand we cannot and do not agree to treat as confidential your ideas, proposals, products, improvements or any other information you may decide to submit or disclose to us, even if the documents are marked as confidential or you indicate the confidential nature of the information, except to the extent covered by a separate written nondisclosure agreement, if any, we may choose to enter into with you. You also understand and agree that Xensr’s willingness to review any proposals or ideas is not an admission by Xensr of novelty, priority, or originality and does not impair Xensr’s right to contest existing or future patents or copyrights claiming the ideas. You agree that Xensr assumes no liability in reviewing these proposals or ideas and agree to rely solely upon such protection as may be afforded under the Patent and Copyright Statutes of the United States of America.
If you choose to provide feedback, comments and suggestions for improvements to the Service or otherwise (in written or oral form) (“Feedback”), you acknowledge and agree that all Feedback will be the sole and exclusive property of Xensr and you hereby irrevocably assign to Xensr and agree to irrevocably assign to Xensr all of your right, title, and interest in and to all Feedback, including any intellectual property rights therein.
Things You Cannot Do On The Service
You agree not to do any of the following:
Post, upload, publish, submit or transmit any Content (including any links thereto) that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances.
Use, display, mirror or frame the Service, or any individual element within the Service, Xensr’s name, any Xensr trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Xensr’s express written consent;
Access, tamper with, or use non-public areas of the Service, Xensr’s computer systems, or the technical delivery systems of Xensr’s providers;
Attempt to probe, scan, or test the vulnerability of any Xensr system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Xensr or any of Xensr’s providers or any other third party (including another user) to protect the Service or Content;
Attempt to access or search the Service or Content or download Content from the Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Xensr or other generally available third party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Xensr trademark, logo URL or product name without Xensr’s express written consent;
Use the Service or Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these TOU;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service or Content to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service or Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service;
Collect or store any personally identifiable information from the Service from other users of the Service without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Xensr will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Xensr may involve and cooperate with law enforcement authorities in prosecuting users who violate these TOU. You acknowledge that Xensr has no obligation to monitor your access to or use of the Service or Content or to review or edit any Content, but has the right to do so for the purpose of operating the Service, to ensure your compliance with these TOU, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Xensr reserves the right, at any time and without prior notice, to remove or disable access to any Content, including, any Content, that Xensr, at its sole discretion, considers to be objectionable for any reason, in violation of these TOU or otherwise harmful to the Service.
Use The Service At Your Own Risk
Our goal is to provide helpful and accurate information on the Service, but we make no endorsement, representation or warranty of any kind about any Xensr Content, information, services or recommendations. We are not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through the Service. Maps, directions, and other GPS or navigation data, including data relating to your recorded location, may be unavailable, inaccurate or incomplete. If you rely on any Xensr Content or the Service, you do so solely at your own risk.
Use Common Sense
Use of the Service should not replace your good judgment and common sense. Please read and comply with all safety notices that accompany your Xensr product or service.
Xensr respects copyright law and expects its users to do the same. It is Xensr’s policy to terminate in appropriate circumstances account holders who repeatedly infringe the rights of copyright holders. Please see Xensr’s DMCA/Copyright Policy (posted at http://www.xensr.com/copyright-policy).
Contests And Giveaways
Additional terms and conditions may apply to contests, Challenges, giveaways and other promotions sponsored by Xensr and its partners. It is your responsibility to carefully review those terms and conditions.
We Are Not Responsible For Third-Party Links On The Service
The Service contains links to third-party websites, apps, services and resources (collectively “Third-Party Services”) that are not under Xensr’s control. We provide these links only as a convenience and are not responsible for the content, products or services that are available from Third-Party Services. You acknowledge sole responsibility and assume all risk arising from your use of any Third-Party Services.
Xensr Does Not Control Third-Party Services That You Link With Your Xensr Account
You Agree to Receive Alerts And Notifications
As part of your use of the Service, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You can control receipt of non-service related communications from your account settings. You are responsible for any messaging or data fees you may be charged by your wireless carrier.
Changes To The Service
Xensr may change or discontinue, temporarily or permanently, any feature or component of the Service at any time without notice. Xensr is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the Service. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by Xensr products without prior notice to you.
Termination and Account Cancellation
If you breach any of these TOU, Xensr will have the right to suspend or disable your Account or terminate these TOU, at its sole discretion and without prior notice to you. Xensr is under no obligation to continue to support the Service in any way, or to provide you with updates or error corrections to the Service. Your rights under these TOU will terminate immediately and automatically, with or without notice in Xensr’s sole discretion, if Xensr ceases to support the Service. Xensr reserves the right to revoke your access to and use of the Service and Content at any time, with or without cause. You may cancel your Account at any time by contacting Xensr Support (available at http://www.xensr.com/support).
THE SERVICE AND CONTENT ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, XENSR EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. XENSR MAKES NO WARRANTY THAT THE SERVICE OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. XENSR MAKES NO WARRANTY THAT XENSR WILL CONTINUE TO OFFER OR MAKE AVAILABLE THE SERVICES, INCLUDING WITHOUT LIMITATION ANY PARTICULAR SOFTWARE FOR ANY PARTICULAR LENGTH OF TIME AND XENSR RESERVES THE RIGHT TO CHANGE AND UPDATE THE SERVICE AND ANY SOFTWARE WITHOUT NOTICE TO YOU. XENSR MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT PURCHASED OR OBTAINED THROUGH THE SERVICE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM XENSR OR THROUGH THE SERVICE OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE.
You will indemnify and hold harmless Xensr and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable attorneys’ fees arising out of or in any way connected with (i) your access to or use of the Service, (ii) Your Content, or (iii) your breach of any warranties made by you hereunder or your violation of any other provision of these TOU. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Limitation Of Liability
NEITHER Xensr, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER party involved in creating, producing, or delivering the Service will be liable for any incidental, special, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES arising out of or in connection with THESE TOU or from the use OF or inability to use the Service, whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not XENSR has been informed of the possibility of such damage, EVEN IF A limited REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PUrPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
In no event will Xensr’S total liability arising out of or in connection with THESE TOU OR FROM THE USE OF OR INABILITY TO USE the Service EXCEED THE AMOUNTS YOU HAVE PAID TO XENSR FOR USE OF THE SERVICE OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO XENSR, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN XENSR AND YOU.
PLEASE READ THE FOLLOWING SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS AND YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS.
You and Xensr agree that any dispute, claim or controversy arising out of or relating to these TOU or the breach, termination, enforcement, interpretation or validity thereof or the use of the Service (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Xensr are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Xensr otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these TOU.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against Xensr, you agree to try to resolve the Dispute informally by contacting email@example.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Xensr may bring a formal proceeding.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820 and a separate form for California residents at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Xensr otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Xensr submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Xensr will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Xensr will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the "Modification" section above, if Xensr changes this "Dispute Resolution" section after the date you first accepted these TOU (or accepted any subsequent changes to these TOU), you may reject any such change at Xensr Support within 30 days of the date such change became effective, as indicated in the "Last Updated Date" above or in the date of Xensr’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Xensr in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these TOU (or accepted any subsequent changes to these TOU).
Except as otherwise stated herein, these TOU constitute the entire and exclusive understanding and agreement between Xensr and you regarding the Service, and these TOU supersede and replace any and all prior oral or written understandings or agreements between Xensr and you regarding the Service and Xensr Content. If for any reason a court of competent jurisdiction finds any provision of these TOU invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these TOU will remain in full force and effect.
You may not assign or transfer these TOU, by operation of law or otherwise, without Xensr’s prior written consent. Any attempt by you to assign or transfer these TOU, without such consent, will be null. Xensr may freely assign or transfer these TOU without restriction. Subject to the foregoing, these TOU will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Xensr under these TOU, including those regarding modifications to these TOU, will be given: (i) via email (to the address that you provide); or (ii) by posting to the Service. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.
Xensr’s failure to enforce any right or provision of these TOU will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Xensr. Except as expressly set forth in these TOU, the exercise by either party of any of its remedies under these TOU will be without prejudice to its other remedies under these TOU or otherwise.
Additional Terms May Apply
Additional terms may apply to certain products or services. In the event that there is a conflict between these TOU and any additional terms, the additional terms will control.