A. THE SERVICES
1. Scope of the Services.
The Services are comprised of a platform that includes business management software used for the purpose of aiding fitness studios, gyms, coaches, personal trainers and others with client management, scheduling and communication. Such businesses authorize End Users, as defined herein, to use the Services on the businesses behalf to assist them in instructing such authorized End Users on fitness, general health and wellness, individual workout plans and nutrition guides. The Services assist businesses, and their employees, affiliates and contractors, in creating and sharing User Content with authorized End Users. The Services also provide a forum for people to connect, inform and inspire others. Xplor, or the designated Affiliate, will make the Services available to You, and Your End Users, subject to these Terms, including all Exhibits.
(a) No Minors. The Services are not directed at children. You must be at least 18 years of age to access or use the Services or create an account. You certify that you are at least 18 years old, if you are not, you may not register for or use the Services. If we learn that You or an End User under age 18 has access to or use of the Services, we may take steps to delete the account and all User Content, data and other information related thereto.
(b) Barred Persons. The Services are not available to any person or entity previously removed from the Services by Xplor, or barred from accessing the Services under the Laws of the United States or any other jurisdiction.
3. Your Account.
(a) You may be required to create an account and specify a password in order to use the Services. To create an account, You must be eligible as specified in section 2, provide contact information, and submit any other form of authentication as determined by Xplor in its sole discretion. You must provide truthful, accurate and current information in connection with your account. You are responsible for updating and correcting information you have submitted to create and/or maintain your account. Please don’t try to impersonate anyone else when You create your account. We may refuse to grant You an account with a name that impersonates someone else; or if the name is illegal, vulgar, or offensive; or if it may be protected by trademark or other proprietary rights, as determined by Xplor in its sole discretion.
(b) You are solely responsible for Your and Your End Users’ accounts, and their interactions through the Services or outside the Services, including with other End Users of the Services. Xplor is not responsible for the connections or disconnections between an employee’s, instructor’s, coach’s, or other End User’s account, including any loss of data or User Content.
(c) You are solely responsible for providing, maintaining and ensuring compatibility with the Services, including but not limited to, any hardware, software, electrical, telecommunications, internet access connections, web browsers, and other physical requirements for access and use of the Services.
(d) You are solely responsible for maintaining the security and confidentiality of your user identification, password used to access your account, and other confidential information relating to your account. You acknowledge and agree that Xplor shall have no responsibility for any incident arising out of, or related to, Your account or account settings. You are fully responsible for all activities that occur under the account and any other actions taken in connection with it. You must immediately notify Xplor of any suspected or actual unauthorized access or use of your account or password, or if applicable your End User’s account or password, and/or any other breach of security. If You notify us or if we otherwise suspect such activity, You agree to cooperate with us in any investigation and to use any prevention measures we prescribe.
4. Mobile Messaging and Calls.
You understand and agree that Xplor, and its Affiliates, may contact you by telephone or text message (including by an automatic telephone dialing system and/or with an artificial or pre-recorded voice) for marketing and Services related purposes, at any of the phone or mobile numbers provide by You or on Your behalf in connection with Your account or use of the Services. You understand and agree that messages sent to Your mobile phone or device may be generated using automated technology. Your consent to receive ‘SMS’ or text messages is not required to use the Service. You also understand that You may opt out of receiving such messages or calls at any time. Xplor does not charge you for sending or receiving text or ‘SMS’ messages. Your mobile carrier’s rates apply. Xplor will not be liable for any delays in the receipt of any ‘SMS’ or text messages as delivery is subject to effective transmission from your mobile and/or network operator.
5. Services Communications.
You agree to receive certain communications in connection with the Services. When You use the Services or send communications, You are communicating with us or the End Users electronically. You hereby consent to receive electronically any communications related to Your use of the Services. We may communicate with You by email or by posting notices on the Service. You acknowledge and agree that all agreements, notices, disclosures and other communications that we provide to You electronically satisfy any legal requirement that such communications be in writing. Please note that by submitting Content, creating a user account or otherwise providing us with your email address, postal address or phone number, You are agreeing that Xplor, its Affiliates and Third Party Service providers, may contact You at that address or number in a manner consistent with Xplor’s Privacy Notice. If You send us any communications, those communications will not be deemed confidential information.
Xplor assumes no responsibility for monitoring the Services for inappropriate submissions or conduct, but reserves the right to do so. If at any time Xplor chooses, in its sole discretion, to monitor the Services, Xplor nonetheless assumes no responsibility for the Content, has no obligation to modify or remove any inappropriate Content, and has no responsibility for the conduct of the users submitting any such Content. Notwithstanding the foregoing, Xplor shall have the right to remove any Content at any time, without notice and for any or no reason, including but not limited to, content that violates this agreement or is otherwise objectionable, in Xplor’s sole discretion. In this regard, You acknowledge and hereby agree that You may not rely on any Content. Xplor has no obligation to retain Content for any period of time, nor to make it available to You in the future.
7. Free, Trial or Beta Services.
Xplor may make available to You free, trial or beta Services from time to time at no charge to You, in Xplor’s sole discretion. These Terms apply to Your use of any Free, Trial or Beta Services. Any free, trial or beta Services are provided “As Is” with no warranties of any kind. Xplor is not responsible for any of Your, or your End Users’ Data, including retention or return, when You or Your End Users’ use or access free, trial or beta Services. Xplor may discontinue, or suspend your use of, any free, trial or beta Services at any time, with or without notice and without any further obligations or liability to You. Any free, trial or beta Services may also be changed to a Subscription with a Fee at Xplor’s sole discretion, and upon prior notice to You. Upon such notice, Your right to continue to use such Services on a free, trial or beta basis shall cease on the earlier of the effective date specified in the notice or upon conversion to a Subscription with a Fee.
8. Services Changes.
We may modify, add, change, suspend, remove, or stop the Services, or any features or functionality, from time to time, in our sole discretion. We may choose to do so at any time without any notice to You. We may also change features or impose additional limitations as we deem appropriate.
The rights granted to Company and its End Users hereunder are non-exclusive and nothing under this Agreement shall be deemed to prohibit Xplor from entering into any agreement, license, services or other arrangement with any party anywhere in the world either during or after the Term.
In the event You are also contracting for related professional services, any such professional services provided by Xplor, or its affiliates, shall be specified in a statement of work that references these Terms.
B. YOUR RESPONSIBILITIES AND OBLIGATIONS
You are responsible for ensuring that You have obtained the requisite level of consent necessary from Your Affiliates and End Users when utilizing the Services, including but not limited to, for marketing via text message and calls with automatic dialer, for email marketing, and in compliance with privacy Laws. You are responsible for ensuring that You have appropriate and lawful permission from all End Users to interact and/or contact such End Users through the Services in accordance with applicable laws and regulations.
2. Responsibility for Use of Services.
You are responsible for all use of the Services under these Terms. Company is further fully responsible for its Affiliates and its End Users use of the Services. Company will include appropriate terms and conditions in its agreements with its End Users that are at a minimum as restrictive as these Terms. Throughout the Term, Company will ensure compliance by its Affiliates and End Users with the relevant provisions of these Terms and all applicable Laws. You are solely responsible for Your own relationships and agreements with any and all End Users, and Xplor has no responsibility or liability of any kind. Any references in these Terms to Company access or use of the Services is deemed to include access or use by its Affiliates, staff, employees, contractors, consultants, advisors, independent coaches or trainers, and End Users, as applicable.
You are solely responsible for the accuracy and quality of Your Data and for ensuring that Your collection, use, sharing, notice, consent and control of End User Data and your Data complies with all applicable privacy and data protection laws and regulations. You are solely responsible for any liability resulting from You or Your Affiliate’s handling of cardholder Data. Company agrees that it and its Affiliates will fully comply with PCI DSS whenever cardholder Data is processed.
4. Prohibited Activities.
By using the Services, You agree that You, and Your Affiliates, staff, employees, contractors, consultants, advisors, independent coaches or trainers and End Users, will not:
(a) use the Services for any purpose that is illegal or prohibited by these Terms or any applicable law.
(b) use the Services in a way that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services, or that could damage, disable, overburden, or impair the functioning of the Services.
(c) use any robot, spider, crawler, scraper, or other manual or automated means or interface to access the Services, retrieve, index, scrape, “data mine” or otherwise gather Content or extract other user’s information.
(d) use or develop any third-party applications that interact with the Services or other users’ content or information without our written consent.
(e) solicit login credentials from another user.
(f) use or attempt to use another user’s account, username, or password without their permission.
(g) impersonate Xplor, any employee of Xplor, another user, or any other person or entity or otherwise misrepresent any affiliation, endorsement, or sponsorship between You and Xplor, and/or any other person or entity.
(h) upload viruses or other malicious code or otherwise compromise the security of the Services.
(i) attempt to circumvent any content-filtering techniques we employ, or attempt to access areas or features of the Services that You are not authorized to access.
(j) probe, scan, or test the vulnerability of our Services or any system or network.
(k) use the Services for any unauthorized purpose, including but not limited to, the purpose of building a competitive product or service or for similar competitive purposes.
(l) encourage or promote any activity that violates these Terms.
(m) use the Services or create or post any User Content that is in violation of the Content Restrictions specified herein.
(n) upload, transmit, send or cause to be sent any advertising or promotional material, including any spam, junk mail, chain letters, or similar solicitation without receiving prior affirmative consent from the End User.
(o) distribute (except for the purposes set forth above), rent, lease, transfer or otherwise transfer rights to, or in any way exploit, any content or material on the Services, in whole or in part.
(p) remove any proprietary notices or labels on any content or material on the Services.
You hereby represent and warrant that: (i) You are eligible to use the Services and authorized to enter into this Agreement; (ii) all information provided by You is truthful, accurate and complete; (iii) You are the authorized signatory of the credit or charge card provided to us, or our payment services provider, to pay the Fees; (iv) You shall comply with all terms and conditions of this Agreement; (v) You are in compliance with all applicable US and international Laws; and (vi) You have provided and will provide accurate and complete registration information, including, without limitation, your full legal name, address and telephone number.
C. USER CONTENT
1. Content You Post.
We may provide opportunities for You, and/or your Affiliates, staff, employees, contractors, consultants, advisors, independent coaches or trainers, and End Users to upload or post original fitness, wellness and health related text photographs, videos, contact and location information, communications, or other content (collectively “User Content”) on the Service. You do not transfer ownership of User Content simply by posting or uploading it. You acknowledge and agree that any User Content posted on the Service may be seen and used by others, and is available to the public. You understand that by posting User Content you have no expectation of privacy for such User Content. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONAL INFORMATION OR OTHER USER CONTENT PUBLICLY AVAILABLE ON OR THROUGH THE SERVICES, YOU DO SO AT YOUR OWN RISK.
2. Sole Responsibility.
You can only post User Content if You own all rights to that User Content, or if another rights holder has given you permission. You represent and warrant that You own the User Content uploaded or posted by You or on Your behalf on the Services. You acknowledge that any disputes regarding ownership of any User Content that has been uploaded to the Services is between You and the End User or third party licensor, and Xplor has no responsibility or liability related thereto. You understand and hereby agree that all User Content is Your and Your End Users’ sole responsibility (as applicable). Company, and each End User who submits User Content, has sole responsibility for the accuracy, quality, integrity, completeness, timeliness, legality, reliability and appropriateness of all User Content posted or uploaded on the Service. Xplor provides no guarantees or warranties that other users will not misuse Your User Content. Xplor is under no obligation to host, store or publish User Content through the Services, or to continue to host, store or publish User Content. Under no circumstances shall Xplor be liable in any way for any User Content including, but not limited to, any errors, inaccuracies, misuse, misappropriation, omissions, and/or loss of any User Content, or for any liability, claim, actions, harm, cost, judgment, proceeding, expense (including attorneys’ fees and costs), or damage of any kind (collectively, “Losses”) incurred as a result thereof.
By uploading or posting any User Content to or through the Services, You hereby grant to Xplor, its affiliates, subsidiaries, partners, contractors, licensors and assigns, a worldwide, irrevocable, perpetual, nonexclusive, assignable, sublicensable, royalty free and transferable right and license to reproduce, encode, store, copy, transmit, publish, post, broadcast, display, publicly perform, distribute, adapt, modify, create derivative works of, disclose and use User Content in connection with the Services and Xplor’s business through all media now known or hereinafter developed, including for the purpose of promotions and marketing. You specifically waive any “moral rights” in and to the User Content. Without those rights, we could not offer our Services. Please note that this license continues even if you stop using our Services.
4. Content Restrictions.
User Content posted on the Service shall not contain inappropriate material as determined by Xplor in its sole discretion, including but not limited to (collectively “Content Restrictions”):
(a) Unlawful content in violation of any federal, state, or local laws or regulations, or violates the rights of any other person or entity, including infringing any intellectual property laws;
(b) harmful, defamatory, threatening, offensive, inaccurate, abusive, harassing, or otherwise inappropriate language, including without limitation, bigotry, racism, discrimination, hatred, or profanity;
(c) pornographic, graphic or objectionable, including but not limited to nudity and depiction of drug use;
(d) comments that do not address the content, reviews, ratings or contains no qualitative value;
(e) information about illegal activities, physical harm or injury to any group, individual, institution or property;
(f) personal attacks, physical confrontations and/or sexual harassment;
(g) advertising, promotional materials, or information commercial in nature, or inappropriate based on the applicable subject matter;
(h) language intended to impersonate other users (including names of other individuals) or offensive or inappropriate user names or signatures;
(i) viruses, trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, interfere with, intercept or appropriate any system, data or personal information; and/or
(j) medical, mental or emotional diagnosis, advice or treatment, emotional advice, dietary advice, or personal advice of any kind.
Removal of User Content.
Xplor reserves the right to remove or delete any User Content for any reason or no reason at all, at its sole discretion, including User Content that violates these Terms. If you see User Content you believe does not comply with these Terms, you can report it to us at [email protected]
The current Subscriptions, including their related Term and Fees, can be found on our Website, unless it is otherwise stated in an Order Document. Subscriptions, the Term (as provided for in section J1 and J2 below) and Subscription Fees may change from time to time at Xplor’s sole discretion.
We charge a subscription fee when You select a Subscription for access and use of the Services ("Subscription Fees"), except for free, trial or beta Services. Subscription Fees are set forth on the applicable Website(s), unless there is an Order Document. Subscription Fees must be paid in advance of each Term, including Renewals (as provided in section J2 below). From time to time, Xplor may change the pricing or fees applied by third parties that relate to the Services, such as card scheme fees and/or interchange.
3. Payment Terms
You agree to pay Xplor the Subscription Fees, and any other applicable fees, for the Subscription You selected as specified on the Website during the registration process or in the applicable Order Document. You are responsible for all Subscription Fees for the entire Term you selected. All Fees, Taxes (as defined herein) and other charges will be billed to your credit or charge card in US Dollars. You hereby grant us permission to process the applicable payments. You agree to promptly pay Xplor in the event of any refusal of your credit card issuer to pay any amount to Xplor for any reason.
4. Past Due Charges
Any unpaid Fees by the applicable due date may accrue interest and charges at the lesser of 1.5% of the outstanding balance per month or the maximum interest rate permitted by Law. On any outstanding balance not received by the due date, You agree to pay the costs of collection, including attorney's fees and costs. In the event You fail to pay any amount when due, Xplor may immediately suspend or terminate this Agreement and your access to the Services.
Subscription Fees do not include taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes assessable by any jurisdiction (collectively “Taxes”). You are responsible for and shall pay all Taxes associated with purchases of Services, Subscriptions, or any other transactions under these Terms, whether imposed now or hereinafter by any governmental entity.
6. No Refunds.
All Subscription Fees are noncancelable and non-refundable for the entire Term. There will be no refunds or credits for partial use of the Services, upgrade/downgrade refunds, nor refunds for months unused with an active account. You are responsible for all Fees of any Renewals relating to Your account until such time as your account or these Terms are terminated as specified herein.
1. Xplor Privacy Notice.
Xplor processes Personal Data in connection with its obligations and rights under these Terms, including the Privacy Notice, or as otherwise instructed by You or required by law. Company shall comply with the terms and conditions contained in the Xplor Privacy Notice
2. Company Privacy Notice.
Company is responsible for maintaining, posting, and adhering to its own privacy notice that explains to End Users how their personal data will be used by the Company in connection with its use and its authorized End Users’ use of the Services, including that such authorized End Users’ personal data will be processed by Xplor, its affiliates and Sub-Processors and by Third Party Service Providers, on behalf of Company. Your privacy statement shall comply with all applicable Laws and shall be posted on a website reasonably available to End Users. Failure by Company to post a privacy statement, or Company’s non-adherence to such privacy statement, is grounds for immediate termination by Xplor of Your account and these Terms.
Company shall (i) ensure that all individuals, including End Users, whose Personal Data is shared with Xplor by them or by Company, have received all legally required notifications at or before the point of collection of such Personal Data; (ii) where legally required, ensure that consent of the individual, including End Users, is properly received and logged; and (iii) provide evidence of such consent, where required, to Xplor upon request. Company represents and warrants that it has notified End Users of Company’s processing of their Data, including directing End Users to Company’s privacy statement, and obtained consents or established other lawful grounds to process End User Data in connection with the Services, including as necessary to share End User Data with Xplor, its affiliates, Sub-processors and Third Party Service providers. Company further represents and warrants that it has obtained all consents as required for Xplor, its affiliates, Sub-processors,or its Third Party Service providers, to process personal data on behalf of Company in connection with the Services. Company acknowledges that Xplor may aggregate, de-identify, anonymize, and/or pseudonymize Data for the purposes set forth in these Terms. Xplor may be required to process, including retain, Data of End Users for the purposes of complying with applicable Laws and exercising legal rights. In such limited circumstances, Company acknowledges that Xplor will act as a controller.
Xplor will implement commercially reasonable technical and organization measures for the Services designed to protect Personal Information against accidental or unlawful destruction, loss, alteration, disclosure or access.
You agree that Xplor may use Sub-Processors to assist Xplor in processing Personal Data for the performance of the Service.
F. PROPRIETARY RIGHTS AND LICENSES.
1. Ownership and Reservation of Rights.
The Services, including the software and Xplor Content, are proprietary to Xplor, or its applicable affiliates, licensors or Third Party Service providers. All right, title and interest in Xplor intellectual property, including but not limited to the Services and Xplor Content, remains the exclusive property of Xplor, its affiliates, licensors or Third Party Service providers. The Services, including the software, is copyrighted and protected by the laws of the United States, and international intellectual property treaties. Xplor, and its affiliates, name, logo, brands or other trademarks or service marks, may not be copied, imitated, and/or used without Xplor, or the applicable affiliate’s written permission. No rights are granted to You hereunder except for the limited license granted below.
Subject to the timely payment of all Subscription Fees and Your compliance with these Terms Xplor grants You a limited, personal, nontransferable, nonexclusive, revocable right (without the right to sublicense) to access and use the Services. You agree NOT to reproduce, distribute, create derivative works from, publicly display, publicly perform, license, sublicense, sell and/or resell the Services, or any content, software, products and/or service obtained from or through the Service.
G. DMCA COPYRIGHT POLICY AND COPYRIGHT AGENT
Xplor respects the intellectual property rights of others and expects you to do the same. The notification process outlined here is consistent with the process suggested by the Digital Millennium Copyright Act (“DMCA”) (which can be found at the U.S. Copyright Office Web Site, http://www.copyright.gov). We reserve the right to block access to and/or attempt to remove material that we believe in good faith to be copyrighted material that has been illegally distributed by You and/or other third parties, and to remove and discontinue service to repeat offenders. We require the following information in your notice of copyright infringement:
(a) a physical or electronic signature of the owner of the copyright (or a person authorized to act on behalf of the owner);
(b) sufficient detail about the copyrighted work claimed to have been infringed;
(c) identification of the URL or other specific location on our websites that contains the material that you claim infringes your copyright;
(d) your name, mailing address, telephone number and email address;
(e) a statement by you that you have a good faith belief that such disputed use of the copyright materials is not authorized by the copyright owner, its agent, or the law; and
(f) a statement that the information in the notice is accurate, and you attest under penalty of perjury, that you are the copyright owner or that you are authorized to act on behalf of the copyright owner.
Your notice may be sent to our DMCA Agent at [email protected], or Xplor Technologies, c/o Mariana Tek, Attn: DMCA Agent, 1717 K St. NW Suite 1100, Washington DC 20006. The DMCA Agent will not attempt to remove content from the Services in response to phone or email notifications, since a valid DMCA notice must be signed, under penalty of perjury, by the copyright owner or by a person authorized to act on his or her behalf. The DMCA Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and that such infringement is occurring on the Service. All other inquiries directed to the DMCA Agent will not be responded to. If a user believes that their content was removed or disabled by mistake or misidentification, the user may send us a written counter-notification.
H. FEEDBACK; SUBMISSION OF IDEAS
Our policy is to not accept, review, or consider unsolicited ideas, original creative artwork, suggestions, improvements, feature requests or other communications (including, without limitation, ideas for new advertising campaigns, new promotions, new or improved products or technologies, product enhancements, processes, materials, marketing plans, new artwork or other works, or new product names) (collectively, “Feedback”). Any Feedback that is offered or communicated to us is voluntary and shall be the property of Xplor without any compensation to You. Feedback will not be considered confidential information. If You choose to give us Feedback, Xplor reserves the right to reproduce, use, disclose, distribute, or otherwise act on such Feedback without any obligation to You.
I. TERM, TERMINATION AND SUSPENSION.
(a) Agreement. This Agreement commences on the Effective Date, as defined herein, and continues until i) all Subscriptions hereunder have expired or ii) terminated pursuant to this Agreement.
(b) Term of Subscription. The term of each Subscription shall be as specified on the applicable Website or Order Document. The term begins on the Effective Date, as defined herein, and continues until the Subscription You selected on the Website during the registration process or specified in the applicable Order Document expires or has been terminated (“Initial Term”).
Except as specified in an Order Document, each Subscription will automatically renew for additional periods equal to the expiring Initial Term or one year (whichever is shorter) (each a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either party gives the other written notice as specified herein of termination thirty (30) days before the end of the Initial Term or Renewal Term whichever is applicable. Notice of nonrenewal to Xplor should be sent to [email protected] Notwithstanding any provision to the contrary, any Renewal Term will be subject to re-pricing of Subscription Fees for such renewals at Xplor’s then-current rates.
3. Termination By You.
The Initial Term and each Renewal Term are noncancelable unless otherwise specified on the Website or in the applicable Order Document. You may stop using the Services at any time, however You will remain responsible for payment of all fees, including unpaid Subscription Fees, owed for the entire Term.
4. Termination for Convenience.
Either party may terminate this Agreement for any reason or no reason, by giving the other party at least thirty (30) days notice before the end of the Initial Term or any Renewal Term. If You terminate for convenience, You must immediately pay any unpaid Subscription Fees associated with the Initial Term or any Renewal Term. Xplor will not be obligated to refund or provide a credit for partial use of the Services.
5. Termination for Cause.
Xplor may terminate for cause (i) these Terms, in whole or in part; (ii) the Term of any Subscription; and/or (iii) terminate or suspend access and use of Your or any End User’s account, effective immediately upon notice to You, and/or the End User. In the event of termination pursuant to this section I(5), in addition to other amounts you may owe Xplor, you must immediately pay any unpaid Subscription Fees associated with the remainder of the Term.
6. Effect of Termination.
Upon any termination or expiration of this Agreement, or any subscription Term, You shall immediately cease any and all use of and access to the Services, and destroy or, at Xplor’s request, return, any Xplor confidential information in your possession. You acknowledge that You shall have no further access to Content or Data, including any End User Data input into the Services, and that Xplor may delete any such Data at any time.
J. THIRD PARTY SERVICES AND LINKS
1. Third Party Products and Services.
Xplor may use, or otherwise make available, third party service providers’ products, services, Content or data in connection with or otherwise to provide the Services or portions thereof (“Third Party Service(s)”). Third Party Services are not “Services” under the Agreement. Xplor does not control or endorse any Third Party Services, or their Content, and such Third Party Services are not subject to or governed by these Terms. The opinions, information, Content and findings of any Third Party Service providers are their own, and do not necessarily state or reflect those of Xplor. Xplor makes no warranties of any kind with respect to Third Party Services, their Content, or any other non-Xplor products, services or content, whether or not they are designated as "recommended" or "approved" by Xplor. Any procurement, access or use by you of Third Party Services, and any exchange of Your Data or other information is solely between you and the provider of such Third Party Services. Without prejudice to any restriction in this Agreement, if you enable or install any Third Party Services for use with the Services, you hereby consent to allow Xplor to share Your Data or other information with the Third Party Service as necessary for the interoperation of Third Party Services with the Service. Xplor is not responsible for any disclosure, modification or deletion of Your Data as a result of such sharing. Xplor may restrict or disable access to any Third Party Services that are made available through the Services without notice and for any reason, including if the Third Party Service provider ceases to make it available. YOUR USE OF THIRD PARTY SERVICES: (I) IS ENTIRELY AT YOUR OWN RISK AND XPLOR SHALL HAVE NO LIABILITY WHATSOEVER IN CONNECTION WITH THE SAME; AND (II) ARE GOVERNED BY ANY APPLICABLE THIRD PARTY SERVICE PROVIDER AGREEMENTS AND POLICIES.
2. Payment Services.
Xplor offers the ability to process payments through the Services via third party payment processor partners (“Payment Services”). Payment Services, provided by third party payment processor partners, are deemed to be Third Party services for all purposes under these Terms. Any procurement by Company, or its Affiliates, of Payment Services will be subject to a separate merchant agreement which will be solely between Company, or its Affiliates, and the third-party payment processor. If Company uses Payment Services, it agrees that it will comply with the terms and conditions of any applicable merchant agreements and all applicable card network rules, policies, laws and regulations, at all times while using such Payment Services. Company also agrees that it and its Affiliates will comply with the relevant portions of the Payment Card Industry (PCI) Data Security Standard (“PCI”) when collecting, accessing, storing, processing or otherwise using credit card information from your End Users.
To the extent that Company, or its Affiliates, enter into a Connected Account Agreement with Stripe for Payment Services, Company authorizes Xplor to perform certain activity in respect of its Connected Account (as defined in the Connected Account Agreement with Stripe), and each of Company’s Affiliates Connected Accounts, and to share certain data with Stripe in order to communicate information about transactions and refunds, account balance adjustments, handling of disputes (including chargebacks) as well as take any other actions necessary to manage your Connected Account on Company and its Affiliates behalf.
Company is responsible for the accuracy and completeness of the information provided to Xplor and/or to Stripe in respect of its, and each of its Affiliates, Connected Account (“Information”) and Company is responsible for ensuring the accuracy of such Information is maintained throughout the term of this Agreement. Company agrees to indemnify, defend and hold harmless Xplor and its Affiliates, against any third party claim against Xplor or its Affiliates which arises as a result of any failure by Company, or its Affiliates, to provide and maintain accurate Information.
Xplor may, on Company’s reasonable request, assist Company to dispute a chargeback with Stripe. Company acknowledges that neither Xplor nor Stripe shall be obliged to investigate the validity of any chargeback or dispute, and that any decision or determination by Xplor and/or Stripe as to the validity and extent of any chargeback shall be final and binding. In no circumstance will Xplor be liable for the payment of any sums with respect to any chargeback or chargeback costs or fees related thereto. Company shall remain fully liable for any fees or costs and shall reimburse Xplor in the event Xplor is charged any fees or costs for such chargeback, and such fees or costs shall be included in the definition of Xplor Loss.
Company acknowledges that, in the event that Stripe suffers loss due to activity in respect of Company’s, or its Affiliates’, Connected Account(s) (including, but not limited to, in respect of transactions, chargebacks, refunds, reversals, costs, fees or fines) and Stripe cannot collect any amount due to it directly from such Connected Account, Stripe will deduct such amounts from Xplor or its Affiliates’ account(s) or otherwise require Xplor or its Affiliates to indemnify and pay Stripe in respect of those amounts (the “Xplor Loss”). Company therefore indemnifies, defends and holds harmless Xplor and its Affiliates against any Xplor Loss that Xplor or any of its Affiliates suffer as a result of any activity on Company, or its Affiliates, Connected Account(s). You agree and authorize Xplor to instruct Stripe to withhold any Xplor Loss from any sums payable to Company, or its Affiliates, and to pay such withheld amount to Xplor.
The Payment Services may include functionality that enables Company, or its Affiliates, to receive recurring or subscription payments from your End Users. If Company uses the Payment Services to submit recurring or subscription transactions, you agree to comply with applicable Laws and card scheme rules, including clearly informing End Users in advance of submitting the initial transaction that they will be charged on an ongoing basis and explaining the method for unsubscribing or cancelling their recurring billing or subscription.
The Service may provide links to third party websites (“Linked Sites”), and Linked Sites are provided for your convenience only. Xplor does not control or endorse Linked Sites, is not responsible or liable for the content therein nor the accuracy, validity or reliability of any information, data, opinions, advice and/or statements contained within such Linked Sites. Xplor is also not responsible for any goods or services sold on Linked Sites, and Xplor does not control or endorse any products or services advertised thereon. The Service may contain ads from third parties. We do not control or endorse any products or services being advertised. You should carefully review the terms of service and privacy statements of any Linked Sites. You will need to make your own independent judgment regarding your interaction with Linked Sites. Your use is at your own risk. Xplor reserves the right to terminate any Linked Sites, or other link and/or linking program at any time in its sole discretion.
You shall comply, and shall ensure your Affiliates, staff, employees, contractors, consultants, advisors, independent coaches or trainers, and End Users comply, with all applicable Laws relating to access to and use of the Services. As used in this agreement, “Laws” means applicable foreign, international, federal, state, local, or other laws, rules and/or regulations, including, without limitation, anticorruption, privacy, global trade, trademark and copyright laws and ICANN policies and procedures governing domain names. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to Xplor, its Services, End Users or the public.
You hereby agree to defend, indemnify and hold harmless Xplor, its officers, directors, employees, affiliates, subsidiaries, agents, licensors, suppliers, and Third Party Service providers (“Xplor Entities”) from and against all Losses arising directly or indirectly out of your or your End Users: (a) use or misuse of the Services; (b) breach or alleged breach of any of these Terms (including any Additional Terms); (c) violation of applicable Laws; (d) any User Content; or (e) breach or alleged violation, infringement or misappropriation of any patent, copyright, trademark, proprietary or other rights of third parties with respect to any User Content You or your End Users upload or post to the Services.
WE PROVIDE OUR SERVICE USING A COMMERCIALLY REASONABLE LEVEL OF CARE. HOWEVER, WE DO NOT MAKE ANY COMMITMENTS ABOUT THE CONTENT, INCLUDING USER CONTENT, THE SPECIFIC FUNCTION OF THE SERVICES, ITS QUALITY, RELIABILITY, AVAILABILITY, SECURITY OR ABILITY TO MEET YOUR OR YOUR END USERS’ REQUIREMENTS. WE DO NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE. ACCORDINGLY, YOU UNDERSTAND THAT YOUR USE OF THE SERVICE AND CONTENT IS AT YOUR SOLE RISK, AND THE SERVICE, INCLUDING THE USER CONTENT, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. XPLOR, AND THE EXPLOR ENTITIES, EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND ABOUT THE SERVICES, INCLUDING THE CONTENT, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COURSE OF DEALING, USAGE AND/OR TRADE PRACTICE. XPLOR EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES RELATING TO ANY CONTENT, INCLUDING USER CONTENT, AND ANY THIRD PARTY SERVICES. YOU WILL LOOK SOLELY TO THE THIRD PARTY SERVICE PROVIDER FOR ANY WARRANTY RELATED ISSUES OR OTHER CLAIMS RELATED THERETO.
N. LIMITATION OF LIABILITY AND DAMAGES
TO THE FULLEST EXTENT PERMITTED BY LAW, XPLOR, AND THE XPLOR ENTITIES, SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR, OR YOUR END USERS’, USE OF OR INABILITY TO USE THE SERVICES, USER CONTENT, OR THIRD-PARTY SERVICES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOST PROFITS, LOSS OF DATA, LOSS OF USER CONTENT, LOSS OF PRIVACY OR SECURITY, UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES OR USER CONTENT, INTERRUPTION OF BUSINESS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF XPLOR IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF WARRANTIES OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT ALLOWED BY LAW, XPLOR’S, AND THE EXPLOR ENTITIES’, ENTIRE LIABILITY UNDER THE AGREEMENT SHALL NOT EXCEED THE GREATER OF (I) THE AMOUNT ACTUALLY PAID BY YOU TO XPLOR UNDER THE AGREEMENT IN THE TWO (2) MONTHS PRECEDING THE DATE THE CLAIM AROSE OR (II) US $1000.
O. INFORMATIONAL PURPOSES ONLY
1. Information, materials and Content contained in the Services is for informational use only. Nothing contained in the Services, including its Content, is intended to be a substitute for, nor does it replace, professional healthcare or wellness advice, diagnosis or treatment. YOU AND YOUR END USERS UNDERSTAND THAT PARTICIPATING IN ANY EXERCISE PROGRAM OR DIET CAN RESULT IN PHYSICAL INJURY. Please consult with a physician or other qualified health care professional before starting or performing any exercise, strength training, diet, fitness program, health or wellness program. XPLOR IS NOT A LICENSED HEALTHCARE PROVIDER. It is your and your End Users responsibility to evaluate your own medical and physical condition and to independently determine whether to perform, use or adapt any of the information provided through this Service. If You have any concerns or questions about your health or the Content on the Service, You should always consult with a physician or other healthcare professional. Do not disregard, avoid or delay obtaining medical or health related advice from your healthcare professional because of something You may have viewed on the Service. Xplor does not recommend or endorse any Content, products, advice, Links, Third Party Services or information that may be available through the Services. The use of any such information provided through the Services is solely at your own risk.
2. The Content and other information contained on the Services may be compiled from a variety of sources, including Third Party Service providers. Neither Xplor nor any Third Party Service providers directly or indirectly practice medicine or dispense medical services as part of the Services. Our policy does not allow medical advice, emotional advice, dietary advice, or personal advice of any kind. These concerns should be addressed and discussed with a physician, health care provider, family nutritionist, registered dietitian, or other professional.
3. YOU ACKNOWLEDGE, AND MUST ENSURE THAT YOUR END USERS ACKNOWLEDGE, THAT XPLOR AND ITS AFFILIATES, ARE NOT ENGAGED IN THE PRACTICE OF MEDICINE AND THAT ALL DECISIONS MADE WILL BE YOUR (OR YOUR END USERS) EXCLUSIVE RESPONSIBILITY. XPLOR EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY ADVERSE CONSEQUENCES OR DAMAGES RESULTING FROM YOUR (OR YOUR END USER’S) RELIANCE ON THE SERVICES, THE CONTENT OR ANY INFORMATION PROVIDED THEREFROM.
P. DISPUTES; ARBITRATION
PLEASE READ THIS PROVISION CAREFULLY; IT INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION. THIS AGREEMENT ALSO INCLUDES A JURY WAIVER.
It is Xplor’s goal that the Services meet your expectations and that You are satisfied. However, there may be instances when You have a problem or dispute that needs special attention. In those instances, Xplor is committed to working with You to reach a reasonable resolution; however, we can only do this if we know about and understand your issue. Therefore, for any problem or dispute that You may have with Xplor, You acknowledge and agree that You shall first give Xplor an opportunity to resolve the problem or dispute. This includes You first sending a written description of the problem or dispute to Xplor, c/o Mariana Tek, Attn: Legal, 1717 K St. NW, Suite 1100, Washington DC 20006. You then agree to participate in discussions with Xplor in good faith in order to attempt to resolve the problem or dispute.
CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS OR PROCEEDINGS ARE NOT PERMITTED. YOU HEREBY WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST XPLOR.
YOU AND XPLOR HEREBY AGREE THAT YOU AND XPLOR EACH WAIVE ANY RIGHT TO A JURY TRIAL INVOLVING ANY CLAIMS OR DISPUTES BETWEEN US.
In no event shall any claim, action or proceeding by You related in any way to these Terms be instituted more than two (2) years after the cause of action arose.
Q. EXPORT CONTROL
Company, and its End Users, acknowledge that the Services, software, and other Xplor technology and derivatives thereof, may be subject to United States export control and economic sanctions restrictions, laws and regulations. Company agrees that all use, exports, and imports related to the Agreement will be in compliance with these restrictions, laws and regulations. Company will not, and will not permit any End User or any other third party, to access, use, transfer, import, or download directly or indirectly, the Services, Content, software, technology or any other materials associated with the Services, into any embargoed or terrorist-supporting country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea), to anyone on or deemed to be covered by, the Consolidated Screening List at https://www.bis.doc.gov/index.php/policyguidance/lists-of-parties-of-concern, or otherwise in violation of any U.S. export law or regulations. Company represents that it is not named on any U.S. government denied persons list.
R. ADDITIONAL TERMS
Your use of the Services may be subject to additional terms and conditions (“Additional Terms”). These Additional Terms will be presented to You with the relevant Service and will become part of your agreement with us, if You choose to use those Services. Additional Terms may also apply for promotions, sweepstakes, contest, giveaways, or similar programs. If these Terms are inconsistent with any Additional Terms, the Additional Terms will control with respect to the Service that it applies.
1. Notice. Except as otherwise expressly provided herein, all notices related to these Terms shall be in writing. You consent to receive communications and notices from Xplor electronically. Xplor will communicate with You, at its discretion, by e-mail, live chat, or by posting notices electronically through the website or the Services. You agree that all agreements, notices, disclosures and other communications that Xplor provides to You electronically satisfy any legal requirement that such communications be in writing. Except as otherwise provided herein or on the Website, all notices to Xplor must be sent to Xplor Technologies, c/o Mariana Tek, Attn: General Counsel, 1717 K St. NW, Suite 1100, Washington, DC 20006.
2. Governing Law, Jurisdiction, and Venue. These Terms, and any dispute or lawsuit arising out of or related to this Agreement, shall be governed by and construed under the laws of the State of New York, U.S. without regard to choice or conflicts of law rules. You agree that any legal action or proceeding between Xplor and You for any purpose relating to this Agreement shall be submitted to the exclusive jurisdiction of the courts of New York, New York. Nothing in this section shall restrict Xplor’s right to bring an action (including for example a motion for injunctive relief) against You in the jurisdiction where You are located. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement.
3. Government End Users. The software in the Services is commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of the Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited. Company will identify to Xplor if an End User is an official, agency, department, or other entity of any government other than the United States Government.
4. Severability. If any provision of this agreement is held by a court of competent jurisdiction to be unlawful, void or unenforceable, that provision shall be limited to the minimum extent necessary so that the agreement shall otherwise remain in effect.
5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
6. Independent Contractors. The parties to the Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.
7. Press Release and publicity. At the request of Xplor, Company agrees to the issuance of a press release on a mutually agreed upon date. Company further agrees to allow Xplor to list Company’s name and logo on its Website and in Xplor’s marketing materials, if Xplor so chooses.
8. Revisions, Amendments. We may at any time, and from time to time, revise, update, change or modify this Agreement, including but not limited to, these Terms, any Additional Terms, or the Privacy Notice, at our sole discretion. The “Last Updated” date at the top of these Terms shall indicate when the latest modifications were made. It is your obligation to check the Services for any changes or updates to the Services, including these Terms, therefore You should visit the Services regularly. Revisions we make will become effective when we publish a modified version to the Services and/or our Website. If we make material changes to the Terms, we will notify You. If You continue using the Services after any revisions have been published, You will be deemed to have accepted such revisions. If You do not agree to the changes, then You must stop using the Services, and You can terminate your account as further described in these Terms.
9. Entire Agreement. This Agreement constitutes the entire, complete and exclusive agreement between You and Xplor regarding your and your End Users’ use of the Services and Content, and supersedes all prior and contemporaneous agreements and understandings with respect to the subject matter of this agreement.
10. Franchise. This Agreement applies to any access or use of Services by Company, its Affiliates and Franchisees, and their respective End Users. If any of Company’s Affiliates or Franchisees accepts this Agreement, uses or accesses the Services, or executes an Order Document that references this Agreement, Company agrees to be responsible for ensuring that each of them complies with these Terms. Company hereby represents on behalf of its Affiliates and Franchisees that they have the authority to be legally bound to these Terms. If You are a Franchisee, You hereby represent and warrant that You are authorized by the Franchisor to enter into this Agreement. Further, each Affiliate and Franchisee of Company agrees to be bound by these Terms as if it were an original party hereto. Company, and each of its Affiliates and Franchisees, shall be jointly and severally liable with regard to the respective obligations and responsibilities under this Agreement.
If You are a Franchisee, You grant Xplor the right to accept instructions and directions from the franchisor of your franchise (“Franchisor”) in respect of any aspect of this Agreement (“Instructions”). You hereby represent and warrant that You have granted Franchisor the right to provide such Instructions to Xplor; You acknowledge and agree that, where Xplor accepts Instructions from Franchisor in connection with this Agreement that conflict with instructions or directions You have given Xplor, the Instructions it receives from Franchisor shall prevail and Xplor shall have no liability under these Terms or otherwise for any failure to comply with Your instructions or directions. You grant Xplor the right to block or otherwise act in relation to payments processed through Xplor (by Stripe or another third party payment services provider) from Your End Users on the basis of Instructions from the Franchisor. If You are a Franchisee, You represent and warrant that You have granted Franchisor the right to enforce any terms of its agreement with You, in the event any of your acts or omissions cause a breach of this Agreement. As a Franchisee, You further represent and warrant that Franchisor has the requisite consent to access and process any of Your or Your End User’s Personal Data, and all applicable fair processing notices have been provided to the applicable data subjects. Company agrees to indemnify, defend and hold harmless Xplor, and the Xplor Entities, from and against all third party claims alleged or asserted against Xplor, or any of the Xplor Entities, and all related fines, charges, damages and expenses arising as a result of (i) any action that Xplor takes in accordance with any Instructions and (ii) Franchisor's access to, or instruction to Xplor in respect of, any End User Personal Data.
11. Third-Party Code. The software in the Services may contain or be provided with components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). Open Source Software may be identified in the Documentation, or Xplor may provide a list of the Open Source Software for a particular version of the Software upon Company’s written request. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement only with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.