Terms of Service
- User’s Acknowledgment and Acceptance of Terms
YOUR REMEDY FOR DISSATISFACTION WITH THE SERVICE IS TO STOP USING THE SERVICE.
We reserve the right to change this Agreement from time to time by posting a revised Agreement on the site. You acknowledge and agree that it is your responsibility to review the Service and this Agreement periodically and to be aware of any modifications. A revised Agreement will take effect five days after their publication on the Site and will apply only on a going-forward basis, unless otherwise provided in a notice to you. Your continued use of the Service after such modifications will constitute your acknowledgment of the modified Agreement and consent to abide and be bound by the modified Agreement.
As used in this Agreement, references to our “Affiliates” include our owners, subsidiaries, affiliated companies, officers, directors, suppliers, partners, sponsors, and advertisers, and includes (without limitation) all parties involved in creating, producing, and/or delivering the Service, including without limitation its contents.
- Description of Services
We make services available on the app principally associated with 1) data collected from the location services (such as GPS) and accelerometer of the cellular device that the app was downloaded on, or 2) the telematics device, which when installed into your automobile, collects information about your automobile’s, use, operation, performance and maintenance status. Fees are set out elsewhere on the site and on the app. You are solely responsible for providing, at your own expense, all equipment necessary to use the Service, including without limitation, a computer, modem, mobile device, and access to the Internet, plus payment of fees associated with such access.
We reserve the sole right to either modify or discontinue the Service, including any features therein, at any time with or without notice to you. We shall not be liable to you or any third party, should we exercise such right. Modifications may include, but are not limited to, changes in the pricing structure, the addition of fee‑based services, the manner of providing or operating services you receive. Any new features that augment, enhance or otherwise change the then current Service shall also be subject to this Agreement.
You understand and agree that interruptions of the Service may occur as normal events. You further understand and agree that we have no control over third party networks you may access or be required to access in the course of the use of the Service, and therefore, delays and disruption of or by other network transmissions are completely beyond our control.
You understand and agree that the services available on the site and app are provided “AS IS” and that we assume no responsibility for the timeliness, deletion, miss‑delivery or failure to store any user communications or personalization settings.
- Limited License Grant
This section sets forth your limited license to use the app.
Grant. By downloading the app or using the portal, you are acquiring and XGear grants you a personal, limited, non-exclusive, non-transferrable, non-sublicenseable license to install and use the app for your non-commercial use on a single, authorized mobile device solely as set forth in this License. Your acquired rights are subject to your compliance with this Agreement. Any commercial use is prohibited. You are expressly prohibited from sub-licensing, renting, leasing, transferring or otherwise distributing the portal or rights to use the portal or the app. The term of your license shall commence on the date that you install or otherwise use the application, and shall end on the earlier of the date that you dispose of the application, or XGear’s termination of this license.
Further Restrictions. Your right to use the app is limited to the license grant above, and you may not otherwise copy, display, seek to disable, distribute, perform, publish, modify, transfer, create works from, or use the app or any component of it, except as expressly authorized by XGear. Unless expressly authorized by XGear, you are prohibited from making a copy of the portal available on a network where it could be used by multiple users. You are prohibited from making the app available over a network where it could be downloaded by multiple users. You may not remove or alter XGear’s trademarks or logos, or legal notices included in the portal, app or related assets. Your right to use the app is also predicated on your compliance with any applicable terms of agreements you have with third parties when using the app.
Reservation of Rights. You have obtained a license to the portal and the app and your rights are subject to this license. Except as expressly licensed to you herein, XGear reserves all right, title and interest in the portal and app (including all characters, storyline, images, photographs, animations, video, music, text), and all associated copyrights, trademarks, and other intellectual property rights therein. This license is limited to the intellectual property rights of XGear and its licensors in the app and does not include any rights to other patents or intellectual property. Except to the extent permitted under applicable law, you may not decompile, disassemble, or reverse engineer the portal or the app, or any component thereof, by any means whatsoever. You may not remove, alter, or obscure any product identification, copyright, or other intellectual property notices in the app. All rights not expressly granted herein are reserved by XGear.
Updates. You agree that the app may automatically download and install updates, upgrades and additional features that XGear deems reasonable, beneficial to you and/or reasonably necessary. You acknowledge and agree that any obligation XGear may have to support the previous version(s) may be ended upon the availability of the update, upgrade and/or implementation of additional features. This license shall apply to any updates, upgrades and/or additional features that are not distributed with a separate license or other agreement.
Termination. This license is effective until terminated. Your rights under this license will terminate immediately and automatically without any notice from XGear if you fail to comply with any of provision of this section. Promptly upon termination, you must cease all use of the portal and destroy all copies of the app in your possession or control. Termination will not limit any of XGear’s other rights or remedies at law or in equity.
- Registration Data and Privacy
In order to access some aspects of the Service, you will need an account and password that can be obtained by completing our online registration form, which requests certain information and data (“Registration Data”) and maintaining and updating your Registration Data as required. We may use a third party browser or internet provider, such as Facebook, to establish your separate account, password and Registration Data. By registering, you agree to comply with all of the terms and conditions imposed by the third party browser or internet provider, you represent that all information provided in the Registration Data is true and accurate, and you agree to maintain and update this information as required in order to keep it current, complete and accurate.
- Payment of Fees
If you subscribe to a part of the Service that requires payment of fees, you agree to pay all such fees. We will bill your payment card for all payment of such fees. Recurring charges are billed in advance of service. You agree to provide us with accurate and complete billing information, including valid payment information.
If, for any reason, your credit card company refuses to pay the amount billed for the Service, you agree that we may, at our option, suspend or terminate your subscription to the Service and require you to pay the overdue amount by a means acceptable to us. We may charge a fee for reinstatement of suspended or terminated accounts.
You agree that until your subscription to the Service is terminated, you will continue to accrue charges for which you remain responsible, even if you do not use the Service. In the event we take legal action to collect on an overdue balance, you agree to reimburse us for all expenses incurred to recover such sums, including reasonable attorney fees and other legal expenses.
- Conduct on the Service
Your use of the Service is subject to all applicable laws and regulations, and you are solely responsible for the contents of your communications through the Service. You agree that your communications will not:
(a) be unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, contain explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates our rules or policies; (b) victimize, harass, degrade, or intimidate an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; (c) infringe on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party; (d) constitute unauthorized or unsolicited advertising, or junk or bulk e-mail (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling; (e) contain software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, device, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; (f) impersonate any person or entity including any of our employees or representatives.
You agree not to use, deploy or operate the Service in a manner that will or can victimize, harass, stalk, threaten, frighten or intimidate an individual or group of individuals, or violate laws, regulations or codes of any municipal, county, state or federal government or agency of the government. If we reasonably determine or believe that your actions in using the Services have or will victimize, harass, stalk, threaten, frighten or intimidate an individual or group of individuals, or violate any laws, regulations or codes of municipal, county, state or federal government or agency of government, we may suspend or terminate your access to this site portal and app, as provided in Section 18 below.
In addition, you may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Not all areas of the site portal and app may be available to you or other authorized users of the site, portal and app. You shall not interfere with anyone else’s use and enjoyment of the Service or other similar services. Users who violate systems or network security may incur criminal or civil liability.
You agree that we may at any time, and at our sole discretion, terminate your membership without prior notice to you for violating any of the above provisions. In addition, you acknowledge that we reserve the right to cooperate fully with investigations of violations of systems or network security at other sites and apps, including by cooperating with law enforcement authorities in investigating suspected criminal violations.
- Third Party Sites and Information
This site, portal and app may link you to other sites and apps on the Internet or otherwise include references to information, documents, software, materials and/or services provided by other parties. These other sites, apps and parties are not under our direct control, and you acknowledge that we are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content or of such sites and apps or of the actions of their operators, nor are we responsible for errors or omissions in any references to other parties or their products and services. The inclusion of such a link or reference is provided as a convenience or because it is related to or associated with our services but does not constitute a warranty of any kind, either express or implied or that we are providing the product or services available from them or their website or app.
- Intellectual Property Information
For purposes of this Agreement, “content” is defined as any information, communications, software, photos, video, graphics, music, sounds, and other material and services that can be viewed by users on our site, portal and app. This includes, but is in no way limited to, message boards, chat, and other original content.
By accepting this Agreement, you acknowledge and agree that all content presented to you on this site, portal and app is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws, and is the sole property of XGear, Inc. and/or its Affiliates. You are only permitted to use the content as expressly authorized by us or the specific content provider. You may not copy, reproduce, modify, republish, upload, post, transmit, or distribute any documents or information from this site and app in any form or by any means without prior written permission from us or the specific content provider, and you are solely responsible for obtaining permission before reusing any copyrighted material that is available on this site and app. Any unauthorized use of the materials appearing on this site, portal and app may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.
Neither we nor our Affiliates warrant or represent that your use of materials displayed on or obtained through this site and app will not infringe the rights of third parties. See “User’s Communications and Materials/Digital Millennium Copyright Act” below for a description of the procedures to be followed in the event that any party believes that content posted on this site, portal and app infringe on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party.
- User’s Communications and Materials/Digital Millennium Copyright Act
(a) an actual or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the site or app are covered by a single notification, a representative list of such works at the site or app; (c) information reasonably sufficient to permit us to contact the complaining party, such as address, telephone number and if available, an electronic mail address at which the complaining party may be contacted; (d) identification of the material that is claimed to be infringing or subject to infringing activity and is to be removed (or to which access is to be disabled), and information reasonably sufficient to permit us to locate the materials; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringing.
Pursuant to the Digital Millennium Copyright Act, 17 U.S.C. Sec. 512 (c), our Designated Agent for Notice of claims of copyright infringement can be reached as indicated below. Service of repeat infringers of copyright or of users about who repeat claims of copyright infringement are received will be terminated.
You acknowledge and agree that upon receipt of a notice of a claim of copyright infringement, we may immediately remove the posting and any identified materials from our site, portal and app without liability to you or any other party and that the claims of the complaining party and the party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the Digital Millennium Copyright Act.
- Disclaimer of Warranties
THE SERVICE, INCLUDING ALL MATERIALS AND SERVICES AVAILABLE THROUGH THE SERVICE, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON‑INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (a) THE SERVICES WILL MEET YOUR REQUIREMENTS, (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR‑FREE, (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (d) THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM THE SERVICE FROM US OR OUR AFFILIATES WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.
THIS SERVICE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. WE MAY MAKE CHANGES TO THE MATERIALS AND SERVICES AVAILABLE THROUGH THE SERVICE, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY PRODUCTS LISTED THEREIN, AT ANY TIME WITHOUT NOTICE. THE MATERIALS OR SERVICES AVAILABLE THROUGH THE SERVICE MAY BE OUT OF DATE, AND WE MAKE NO COMMITMENT TO UPDATE SUCH MATERIALS OR SERVICES.
THE USE OF THE SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, OR DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
Through your use of the Service, you may have the opportunities to engage in commercial transactions with other users and vendors, such as mechanics, insurance companies and others. You acknowledge that all transactions relating to any merchandise or services offered by any party, including, but not limited to the purchase terms, payment terms, warranties, guarantees, maintenance and delivery terms relating to such transactions, are agreed to solely between the seller or purchaser of such merchandise and services and you. WE MAKE NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH, OR IN CONNECTION WITH THIS SITE AND APP, AND/OR THE SERVICE, AND YOU UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT YOUR OWN RISK. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THIS SITE, PORTAL AND APP AND/OR THE SERVICE, FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US OR ANY OTHER OF OUR AFFILIATES.
Content available through this site, portal and app often represents the opinions and judgments of an information provider, site or app user, or other person or entity not connected with XGear, Inc. We do not endorse, nor are we responsible for the accuracy or reliability of, any opinion, advice, or statement made by anyone other than an authorized XGear, Inc. spokesperson speaking in his/her official capacity.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability
Your exclusive remedy and our entire liability, if any, for any claims arising out of this Agreement and your use of the Service shall be limited to the amount you paid us for the services on the relevant site, portal or app during the two (2) month period before the act giving rise to the liability.
EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL WE OR OUR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT OR INDIRECT SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM DEATH, PERSONAL INJURY, PROPERTY DAMAGE, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICE OR OF ANY WEB SITE OR APP REFERENCED OR LINKED TO FROM THE SERVICE.
FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THIRD PARTY GOODS AND SERVICES OFFERED THROUGH THE SERVICE OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION THE PROCESSING OF ORDERS.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, FRAUDULENT MISREPRESENTATIONS, CERTAIN INTENTIONAL OR NEGLIGENT ACTS, VIOLATIONS OF SPECIFIC STATUTES, OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Upon a request by us, you agree to defend, indemnify, and hold us and our Affiliates harmless from all liabilities, claims, and expenses, including attorney’s fees that arise from your use or misuse of the Service. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
- Participation in Promotions
From time to time, the Service may include advertisements offered by third parties. You may enter into correspondence with or participate in promotions of the advertisers. Any such correspondence or promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or promotions, are solely between you and the advertiser. We assume no liability, obligation or responsibility for any part of any such correspondence or promotion.
- E-mail Services
We may make e-mail services available to users of our site and app, either directly or through a third‑party provider.
We may employ monitoring devices or techniques to help protect our users from mass unsolicited mailings (also known as “spam”) and/or other types of electronic communications that we deem inconsistent with our business purposes. However, such devices or techniques are not perfect, and we will not be responsible for any blocking or failure to block any material.
Mailboxes may have a limited storage capacity. If you exceed the maximum permitted storage space, we may employ automated devices that delete or block e-mail messages that exceed the limit. We will not be responsible for such deletion or blocking messages.
- Use of Site, Portal and App
You acknowledge that we may establish general practices and limits concerning use of the Services available on our site and app, the maximum disk space that will be allotted on our servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Services in a given period of time. You acknowledge that we reserve the right to log off accounts that have not paid a subscription fee, if applicable, or that are inactive for an extended period of time. You further acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
- Security and Password
You are solely responsible for maintaining the confidentiality of your password and account and for any and all statements made and acts or omissions that occur through the use of your password and account, including any charges incurred. Therefore, you must take steps to ensure that others do not gain access to your password and account. Our personnel will never ask you for your password. You may not transfer or share your account with anyone, and we reserve the right to immediately terminate your account in the event of any unauthorized transfer or sharing thereof. We have the right but not the obligation to assume, without further inquiry, that any communication we receive through your account has been made by you.
- Export Controls
Software available on or through this site and app is subject to United States Export Controls. No software from this site, portal and app may be downloaded or exported (a) into (or to a resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country which the United States has embargoed goods; or (b) anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Deny Orders. By downloading or using the software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
- International Use
Although the Service may be accessible worldwide, we make no representation that materials on the Service are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this site and/or portal and/or app from other locations do so at their own initiative and are responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with this site and/or portal and/or app is void where prohibited.
- Termination of Use
You agree that we may, in our sole discretion, terminate or suspend your access to all or part of the Service with or without notice and for any reason, including, without limitation, breach of this Agreement. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating your relationship and may be referred to appropriate law enforcement authorities.
Upon termination or suspension, regardless of the reasons therefore, your right to use the Services available on this site and app immediately ceases, and you acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or this site and app. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection therewith. Sections 1, 3-4 6-12, 14, and 19-21 of this Agreement, as well as your liability for any unpaid fees, shall survive any termination.
- Governing Law
This site and app (excluding any linked sites and apps) and the Service are controlled by us from our offices within the State of Delaware, United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places has laws that may differ from those of Delaware, both of us agree that the statutes and laws of the State of Delaware, without regard to the conflicts of laws principles thereof and the United Nations Convention on the International Sales of Goods, will apply to all matters relating to the use of the Service and the purchase of products and services from us available through the Service.
- BINDING ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT
Initial Dispute Resolution: Our Customer Support Department is available via email at email@example.com to address any concerns you may have regarding the Service. Our Customer Service Department is able to resolve most concerns quickly to our customer’s satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the Customer Support Department and good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration.
Binding Arbitration: If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution under the Initial Dispute Resolution provision, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including without limitation its formation, performance and breach), the parties’ relationship with each other and/or your use of the Application and Services shall be finally settled by binding arbitration administered by the American Arbitration Association (the “AAA”) in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the AAA, excluding any rules or procedures governing or permitting class actions.
The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
Class Action Waiver. The parties agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND XGEAR 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. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception. Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30 Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in this section 20 by sending written notice of your decision to opt-out to the following address: XGear, 1392, Borregas Avenue, Sunnyvale, CA 94089. The notice must be sent within 30 days of your first use of the Service, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, XGear also will not be bound by them.
Changes to this Section. XGear will provide 60-days notice of any changes to this section. Changes will become effective on the 60th day, and will apply prospectively only to any claims arising after the 60th day.
All notices to a party shall be in writing and shall be made either via e-mail or conventional mail. Notices to us must be sent to the attention of:
Notices to you may be sent either to the e-mail address supplied for your account or to the address supplied by you as part of your Registration Data. In addition, we may broadcast notices or messages through the site and app to inform you of changes to the site and app or other matters of importance, and such broadcasts shall constitute notice to you. Any notices or communication under this Agreement will be deemed delivered to the party receiving such communication (a) on the delivery date if delivered personally to the party; (b) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (c) five business days after the mailing date, if sent by US mail, return receipt requested; (d) on the delivery date if transmitted by confirmed facsimile; (e) on the delivery date if transmitted by confirmed e-mail or (f) on the delivery date of transmitted to you through the app.
- Entire Agreement
These terms and conditions in this Agreement constitute the entire agreement and understanding between us concerning the subject matter hereof and supersedes all prior agreements and understandings of the parties with respect thereto. The terms and conditions in this Agreement may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for products or services which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by you and us. To the extent that anything in or associated with this site and app is in conflict or inconsistent with this Agreement, the terms and conditions in this Agreement shall take precedence.
In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys’ fees. Any cause of action brought by you against us or our Affiliates must be instituted with one year after the cause of action arises or be deemed forever waived and barred.
You may not assign your rights and obligations under this Agreement to any party, and any purported attempt to do so shall be null and void. We may free assign our rights and obligations under this Agreement.
You agree not to sell, resell, reproduce, duplicate, copy, store or use for any commercial purposes any portion of this site, portal or app, any app (associated with this site), data or information generated by any product or service obtained from or through the Service, or from use of or access to the Service. You disclaim all rights to or ownership of information and data generated by a product or service obtained from or through the Service. In addition to any excuse provided by applicable law, we shall be excused from liability for non-delivery or delay in delivery of products and services available through our Service arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, telecommunications disruption or malfunction, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.
If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
Any failure by us to enforce or exercise any provision of this Agreement or related rights shall not constitute a waiver of that right or provision.