We’re so glad you are here. These Terms of Service (the “Terms”) describe the rights and responsibilities that apply to your use of Xip’s websites (the “Site”), services, and mobile applications (collectively with the Site, the “Service”), each owned and operated by Xip Technologies, Inc. (“Xip,” “we,” “our,” or “us”).
Certain specific services, promotions or programs may have additional terms and conditions specific to them which will be communicated to you when you access, purchase or apply therefor. Those additional terms and conditions are incorporated herein by reference. If there is a conflict between these Terms and such other terms and conditions, the latter terms and conditions shall control with respect to your use of that portion of the Site or Services.
THESE TERMS CONTAIN A BINDING AND MANDATORY ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
BY ACCEPTING THE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY ESTABLISHING AN ACCOUNT, USING OUR SERVICE, AND/OR NAVIGATING OUR SITE, YOU REPRESENT THAT (A) YOU HAVE READ AND UNDERSTOOD THE TERMS; (B) YOU ARE AT LEAST 18 YEARS OLD (OR ARE THE AGE OF MAJORITY IN YOUR JURISDICTION); (C) YOU CAN FORM A BINDING CONTRACT; AND (D) YOU ACCEPT THE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THE TERMS.
Xip may, in its sole discretion, amend the Terms and any of the other agreements that comprise the Terms at any time by posting a revised version on the Site. Xip will provide reasonable advance notice of any amendment that includes an increase in the fees charged by Xip by posting the updated Terms on the Site, providing notice on the Site, and/or sending you notice by email. Any revisions to the Terms will take effect on the noted effective date (each, as applicable, the “Effective Date”).
Through our Service, you may send a personalized request for advice or input (each a “Request”) to talented creators and influencers (each a “Creator”) for a fee (or for no charge, as discussed below), or if you are Creator, you may respond to such Request. This Request can be for you or for a third party that you identify as the recipient (the “Recipient”) in the Request. The Creator will then send the Recipient a response to the Request through our Service (each a “Response” and together with a Request, an “Interaction”). You may also apply to become a Creator on the Service. Xip, in its sole discretion, may accept or reject your application to become a Creator. If your application to become a Creator is approved by Xip, then the terms and conditions below under the Section titled “Creator Terms” also applies to your user of the Service.
Each Creator has sole discretion to determine how to respond to a Request and the content of the Creator’s Response may not follow your Request exactly. We may reject any Request in our sole discretion. The Creator has up to seven days to fulfill or decline your Request. Once your Request is sent to the Creator, your payment method will be charged the amount specified on the Creator’s booking page on our Service at the time you submitted the Request.
We may, for any reason, refuse to accept or transmit a Request and/or Response or refuse to remove a Request and/or Response from our Service. Further, we reserve the right to decide whether a Request and/or Response violates the Terms and may, at any time, without notice to you and in our sole discretion, remove your Request, and/or Response terminate your access to our Service, remove or ban you (and any Account you created or control), or take other appropriate action in our sole discretion for violation of the Terms.
If you create an account on the Service (your “Account”), you are responsible for maintaining the security of your Account and Your Materials (as defined below). You agree to keep your contact and billing information (including but not limited to email address) up-to-date, and to comply with all billing procedures, including providing and maintaining accurate and lawful billing information for active accounts.
You must be at least 18 years or older to use our Services and create an Account. You are fully responsible for all activities that occur under your Account and any other actions taken on the Service. You must not describe or assign Your Materials to your Account in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and Xip may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause Xip liability. You must immediately notify Xip of any unauthorized uses of your Account or any other breaches of security. If your Account has been suspended or terminated, you may not open another account on the Service. Xip will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
You will not:
You acknowledge and agree that each Response or other materials from a Creator is owned by the Creator who created it. You are buying the right (or license) to use each Creator’s Response. The Response is not sold to you or the Recipient.
Subject to your payment in full and the Terms, the Creator grants to you (or the Recipient) a non-exclusive, royalty-free, fully paid, worldwide, sublicensable (for no monetary or other benefit), revocable, limited license to use, reproduce, distribute, and publicly display the Response solely for the Recipient’s own personal, non-commercial, and non-promotional purposes and in any and all media (for example, on social media platforms), whether now known or hereafter invented or devised. Your use of the Responses may not harm or potentially harm the Creator, Xip, or a third party.
You may use a Response only in accordance with the Terms. We may terminate all or part of the foregoing licenses at any time for any reason, in our sole discretion. We reserve the right to remove a Response from our Service at any time for any reason without any notice to you.
You (whether you’re a User or a Creator) hereby grant to us a non-exclusive, royalty-free, fully paid, unlimited, sublicensable (through multiple tiers of sublicenses), perpetual, and irrevocable license, in any and all manner and media, whether now known or hereinafter invented or devised (including social media platforms), to use, reproduce, license, distribute, modify, adapt, reformat, publicly perform, publicly display, create derivative works of, and otherwise use (the foregoing, “License”) the Requests, the Responses (if you are a Creator), and any other materials or information (collectively “Your Materials”) you provide to Xip, other Users, or the Service for the purposes of operating and providing our Service (including providing the Request to Creators and Responses to Users), developing and improving our products and services, and advertising, marketing, and promoting our Service and our products and services. You represent and warrant that you either: (a) own all rights to all of Your Materials; or (b) have all rights necessary, including with respect to any third party that contributed to, is included in, or is referred to, in any of Your Materials, to grant to us the foregoing rights. You will not make any Request or provide any Response that is confidential or proprietary or that contains or includes any information that you do not have the right to disclose or that you or any Recipient do not wish to be disclosed. Xip will not be responsible or liable for any use or disclosure of a Request or Response, including any personal information belonging to you, a Recipient, or a third party. In addition and for the avoidance of doubt, if you are a Creator, you hereby grant to us a License (as defined above) to Your Materials for purposes of providing the license set forth in Section 5 to Users that you have Interactions with.
We do not control the information provided by Users, which you may find to be offensive, harmful, inaccurate, or deceptive. Please use caution and common sense when using the Service. There are also risks of dealing with underage persons or people acting under false pretenses. Additionally, there may be risks dealing with international trade and foreign nationals. By using the Service, you agree to accept such risks and that Xip is not responsible for the acts or omissions of Users on the Service.
The Responses from Creators on the Service are provided by Creators and are to be used by you (or Recipients) for general information and entertainment purposes only, not as a substitute for in-person evaluation or specific professional (medical, legal, veterinary, tax, financial, etc.) advice. By answering questions, Creators do not intend to form, and do not form attorney-client or doctor-patient relationships or any other professional relationship with Users of the Service. The laws, regulations, other governing authorities, standards, practices and procedures that apply to your particular question may differ depending on your location and information typically discovered through in-person evaluations or visits.
You agree not to make available to Xip or Creators any personal identification numbers (PINs), passwords or other electronic identification numbers, information a person uses for access to personal or financial information or resources, or any personal health information as defined by the Health Insurance Portability and Accountability Act of 1996 and the privacy and security regulations promulgated thereunder (collectively, “Sensitive Personal Information”). If any such Sensitive Personal Information is sent to Xip or a Creator, Xip or the Creator shall have the right, but not obligation, to extract, delete, remove and otherwise remediate such information from its systems or records. Xip has the right, but undertakes no obligation, to monitor the Service for Sensitive Personal Information, and Xip shall have no obligation whatsoever with respect to any information transmitted in violation of the foregoing.
No professional-client relationships shall be formed on the Service. Communications on this Service are not confidential and shall not be the subject of any associated privileges.
If you think you may have a medical emergency, call your doctor or 911 immediately. We do not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Service or Response. Reliance on any information or Response provided by Xip or Creators, or other visitors to the Service is solely at your own risk.
Information and materials submitted in the content of your Requests and Responses are not private or confidential, nor is it protected by attorney-client, doctor-patient, or any other privilege, and it may be read, collected, and used by others.
The applicable fee for each Response (or other offering) is specified on the Creator’s booking page on our Service when you make your Request (the “Creator Fee”). You agree to pay all amounts due in accordance with the payment terms in effect when you submit your Request. You agree that when you submit a Request, we will charge your payment method for the applicable fees.
We use various payment processing services providers (collectively, “Payment Processor Services” to process payments on the Service (including to pay Creators). By making use of these Payment Processor Services via the Service, you consent to and authorize us to delegate the authorizations and share the information you provide to the third party provider(s) of the Payment Processor Services to the extent required to provide the Payment Processor Services to you.
We may cancel your Request if: (a) your payment method is declined, or (b) you have previously been banned or removed from our Service for any reason. We also reserve the right at any time to change our fees and payment procedures, including payment options and terms, either immediately upon posting on our Service or by other notice to you.
By using any payment method and/or providing payment details for making purchases on Xip, you represent and warrant that: (a) you are legally authorized to provide such information, (b) you are legally authorized or have permission to make payments using the payment method(s), (c) if you are an employee or agent of a company or person that owns the payment method, you are authorized by that company or person to use the payment method to make payments on Xip, and (d) such actions do not violate any applicable law.
If you have a question about an Interaction made on Xip or need any additional information about a transaction, please contact us at firstname.lastname@example.org. We have the sole discretion to determine how billing disputes between us will be resolved and we will do our very best to make sure you have a great experience with Xip.
All transactions are in U.S. dollars (“USD”) unless otherwise specified at point of purchase.
If you are a Creator, see Section 16(b) below for details regarding payments made to you
You may cancel your Account at any time directly through your Account Settings on the Service or by contacting us at email@example.com. We reserve the right to terminate your Account (or to allow you to signup for an Account in the first place) and your access to our Service, at any time, for any reason, in our sole discretion. For example, if you are a Creator, we reserve the right to terminate your Account, or to refuse to allow you to become a Creator, if we become aware of alleged misconduct or other behavior that could do harm to our reputation. If you violate any of the Terms, your permission to use our Service automatically terminates. If you are a Creator, if your account is terminated or cancelled, then upon such event, all payments accrued as of the effective date of termination or cancellation will be payable in accordance with the Terms.
The Service may contain links to third party websites and service providers (collectively, “Third Party Services”) that are not owned or controlled by Xip. Xip has no control over and assumes no responsibility for the content, practices, and privacy policies of such Third Party Services. Xip encourages you to, and you acknowledge that you are solely responsible for, reviewing and complying with any third party terms and conditions and privacy policies. Xip cannot and will not censor or edit the content of any Third Party Service. Placement of information, logos, links or names of such non- Xip entities on the Service does not constitute an endorsement or warranty of these entities, their products or services. By using the Service, you agree that Xip is not responsible for, and you take full responsibility for, a decision to visit or patronize any such Third Party Service or entity, you hold Xip and the applicable Creator harmless from any and all liability arising from such actions, and you expressly relieve Xip from all liability arising from your use of Third Party Services. You further acknowledge that no relationship (such as partnership, agent, joint venturer, or employee) is created between you and Xip or between any user (including you and Creators) and Xip by formation of this Agreement (or any of the Terms) or by your participation on the Service. IT IS THE RESPONSIBILITY OF THE USER TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ANY OPINION, ANSWER OR OTHER CONTENT AVAILABLE THROUGH THE SERVICE, FROM THIRD PARTIES OR OBTAINED FROM A LINKED SITE. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC OPINION, ANSWER, PRODUCT, SERVICE, OR OTHER CONTENT.
You (as a User or Creator) agree to indemnify and hold Xip, its parents, subsidiaries, officers, directors, shareholders, employees, agents, joint venturers, consultants, successors and assigns and each Creator (if you’re a User) you have an Interaction with harmless from and against all losses, costs, liabilities and expenses including reasonable attorneys’ fees, asserted by any third-party that are in any way due to, or arising out of, your use of or conduct on the Service. We may select counsel for and control the defense of any claim that you are indemnifying. You will reasonably cooperate with us in connection with any claim.
XIP SERVICES, SOFTWARES, AND RELATED DOCUMENTATION ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SERVICE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THESE TERMS. XIP DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. XIP DOES NOT WARRANT OR REPRESENT THAT THE USE OR THE RESULTS OF THE USE OF THE MATERIALS AVAILABLE THROUGH THE SERVICE, FROM THIRD PARTIES OR A LINKED SITE WILL BE CORRECT, ACCURATE, TIMELY, RELIABLE OR OTHERWISE. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
UNDER NO CIRCUMSTANCES WILL XIP BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A USER’S RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICE, FROM THIRD PARTIES (SUCH AS CREATORS OR OTHERS) OR A LINKED SITE, OR USER’S RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM A THIRD PARTY OR A LINKED SITE. USE OF THE SERVICE IS AT USER’S SOLE RISK. FOR THE SAKE OF CLARITY, XIP IS NOT RESPONSIBLE FOR THE ACCURACY OR CONTENT OF A RESPONSE AND WILL HAVE NO LIABILITY WHATSOEVER FOR THE CONTENT OF A RESPONSE. YOUR PARTICIPATION IN AN INTERACTIN AND YOUR VIEWING AND USE OF A RESPONSE ARE AT YOUR OWN RISK.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM XIP OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY.
IN NO EVENT SHALL XIP, ITS PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, JOINT VENTURERS, CONSULTANTS, SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, PROFITS, DATA, USE, REVENUE OR OTHER ECONOMIC ADVANTAGE), ARISING OUT OF, OR IN CONNECTION WITH, OUR SITE, OUR SERVICES OR THE TERMS BASED ON ANY THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THIS SITE AND THE INFORMATION WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. IN NO EVENT WILL OUR LIABILITY, AND THE LIABILITY OF OUR PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE EXCEED THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO XIP IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (B) US$100. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
(a) CLASS ACTION WAIVER.
YOU AND XIP EXPRESSLY AGREE THAT:
(i) ANY ARBITRATION PROCEEDING WILL TAKE PLACE ON AN INDIVIDUAL BASIS;
(ii) YOU EXPRESSLY WAIVE YOUR ABILITY TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, MASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR OTHER REPRESENTATIVE PROCEEDING;
(iii) THERE SHALL BE NO CLASS CLAIMS, CONSOLIDATION, OR JOINDER ALLOWED IN ANY ARBITRATION BETWEEN THE PARTIES; (iv) IF THIS ARBITRATION AGREEMENT IS FOUND INAPPLICABLE TO YOUR DISPUTE WITH XIP, THIS CLASS ACTION WAIVER WILL CONTINUE TO APPLY IN LITIGATION; AND (v) YOU AGREE THAT THIS CLASS ACTION WAIVER IS AN ESSENTIAL ELEMENT OF OUR CONTRACT AND THESE TERMS AND THAT IT MAY NOT BE SEVERED. THE ARBITRATOR SHALL NOT CONSOLIDATE CLAIMS OF DIFFERENT USERS INTO ONE PROCEEDING, NOR SHALL THE ARBITRATOR HAVE THE POWER TO HEAR ARBITRATION AS A CLASS ACTION, COLLECTIVE ACTION, OR REPRESENTATIVE ACTION. SIMILARLY, ANY CLAIMS COVERED BY THIS DISPUTE RESOLUTION AGREEMENT THAT XIP MAY HAVE AGAINST USER MAY NOT BE BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION OR REPRESENTATIVE ACTION PROCEEDING.
(b) Arbitration: You and Xip agree to resolve any disputes between you and Xip through binding and final arbitration instead of through court proceedings. You and Xip each hereby waive any right to a jury trial of any controversy, claim, counterclaim, or other dispute arising between you and Xip relating to the Terms or our Site (each a “Claim,” and collectively, “Claims”). Any Claim will be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision will be in writing, will include the arbitrator’s reasons for the decision, will be final and binding upon the parties, and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including any pleadings, briefs, or other documents submitted or exchanged, any testimony or other oral submissions, and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
(c) Costs and Fees: If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Xip will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
(d) No Preclusions: This arbitration agreement does not preclude you or Xip from seeking action by federal, state, or local government agencies. You and Xip each also have the right to bring any qualifying Claim in small claims court. In addition, you and Xip each retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request will not be deemed to be either incompatible with the Terms or a waiver of the right to have disputes submitted to arbitration as provided in the Terms.
(e) No Class Representative: You and Xip each agree that with respect to any Claim, neither may: (i) act as a class representative, or (ii) participate as a member of a class of claimants. You agree that no Claim may be arbitrated on a class or representative basis. The arbitrator can decide only individual Claims (whether brought by you or Xip). The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
(f) Severability/No Waiver/Survival: If any provision of this Section 13 is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed and the remainder of this Section 13 will continue in full force and effect. No waiver of any provision of this Section 13 will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver will not waive or affect any other provision of the Terms. This Section 13 will survive the termination of your relationship with Xip.
(g) 30-Day Opt-Out Right: You have the right to opt out of the provisions of this Arbitration Agreement by sending, within 30 days after first becoming subject to this Arbitration Agreement, written notice of your decision to opt out to the following address: Xip, c/o Legal Department, 600 California Street, 11th Floor, San Francisco, CA 94108. Your notice must include your name and address, any usernames, each email address you have used to submit your Xip “Interaction” requests or set up an account on our Service (if applicable), and an unequivocal statement that you want to opt out of this Arbitration Agreement. You agree that if you opt out of this Arbitration Agreement, all other parts of the Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
(h) LIMITATIONS: This Section 13 limits certain rights, including the right to maintain certain court actions, the right to a jury trial, the right to participate in any form of class or representative claim, the right to engage in discovery except as provided in AAA rules, and the right to certain remedies and forms of relief. In addition, other rights that you or Xip would have in court may not be available in arbitration.
We respond to notices of alleged copyright infringement and terminate access to our Service for repeat infringers. If you believe that materials on our site infringe copyright, please send the following information to the Copyright Agent named below:
If you do not follow these requirements, your notice may not be valid. Please note, only notices of alleged copyright infringement should be sent to our Copyright Agent at:
Xip Technologies, Inc.
Attn: Legal Team
600 California Street, 11th Floor
Under no circumstances will Xip be liable for any delay or failure in performance due in whole or in part to any acts of God (such as earthquakes, storms, floods, etc.), unavoidable accidents, laws, rules, regulations or orders of government authorities, acts of war (declared or not), terrorism, hostilities, blockades, civil disturbances, embargoes, strikes, or any other event or cause beyond the reasonable control of any Xip Party. The Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws rules or provisions. You agree that any action of whatever nature arising from or relating to the Terms or our Service will be filed only in the state or federal courts located in San Francisco, California. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action. If any provision of the Terms is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed from the Terms and will not affect the enforceability of any other provision. The failure by Xip to enforce any right or provision of the Terms will not prevent Xip from enforcing such right or provision in the future and will not be deemed to modify the Terms. Xip may, at any time, assign its rights and obligations under the Terms, including to an affiliated entity or in connection with a sale of assets, merger, acquisition, reorganization, bankruptcy, other transaction, or by operation of law.
(a) Independent Contractor.
As a Creator, you acknowledge and agree that the relationship between you and Xip is solely that of independent contracting parties. You and Xip expressly agree that: (i) this is not an employment agreement and does not create an employment relationship between you and Xip, and (ii) no joint venture, partnership or agency relationship is intended or created by the Terms. You have no authority to bind Xip and you will not hold yourself out as an employee, agent, or authorized representative of Xip.
(b) Creator Representations and Warranties.
By agreeing to the Terms and completing the online registration process, you are representing and agreeing that:
(c) Fees, Refunds, and Disputes.
As a Creator, you will pay Xip a service fee equal to fifteen percent (15%) of the total Creator Fee as consideration for the use of the Service, including the communication, invoicing, reporting, dispute resolution and payment services provided by Xip (the “Service Fees”). The Service Fees (to use the Service) are paid solely by Creators. In addition, any fees imposed by our payment processors for applicable Payment Process Services (“Processing Fees”) will be subtracted from the Creator Fee. When a User pays a Creator for an Interaction or when funds related to an Interaction are otherwise released to a Creator upon sending a Response: (i)Xip will subtract and retain the Service Fees from the total Creator Fee, (ii) our payment processors will subtract the Processing Fees from the Creator Fee, and then (iii) Xip will provide the remaining portion of the Creator Fee to Creator (the “Net Fee”). Creator hereby irrevocably authorizes and instructs Xip and its payment processors to deduct the Service Fees and Processing Fees from the Creator Fee for each Interaction. In the event Creator chooses to withdraw funds in a currency other than U.S. dollars, there may also be a foreign currency conversion charge imposed by Xip or an affiliate and the rate may differ from rates that are in effect on the date of the payment and you may be able to obtain a better rate from your bank or financial institution.
Once per month, Xip will remit to Creator the aggregate Net Fees for completed Interactions to Creator’s account connected to the provider of the Payment Processor Services. Creators may not ask, request, or allow Users to pay, or make payment using any method other than through the Service.
You agree that Xip has the right to resolve User complaints as it deems necessary or advisable, including, in Xip’s sole discretion, issuing refunds to Users to settle disputes. If Xip decides to issue a refund to a User, Xip may seek reimbursement from the Creator for such refund, or Xip may offset any refunds against any future payments to be forwarded to Creator. Xip also reserves the right to resolve accounting discrepancies with Users in its sole discretion.
If Xip believes, in its sole discretion, that any User funds were paid to a Creator under suspicious circumstances or that funds were derived from a suspicious User account, Xip will investigate the situation until it has reached an adequate resolution, as determined by Xip in its sole discretion. The investigation or resolution may require the involvement of certain third parties, such as an applicable credit card company. Such an investigation may require Xip to put a hold on a Creator’s account. Xip will make commercially reasonable efforts not to exceed a 90-day hold on a Creator’s account during such an investigation.
Xip disclaims any warranty that its billing and payment system is without error. If a Creator believes there is a problem with Xip’s billing or payment system, Creator should notify Xip by email to firstname.lastname@example.org within 30 days of such problem. Upon receipt of the notification of such a problem, Xip will, in good faith, work to remedy any alleged payment errors.
Creator acknowledges and agrees that Creator is solely responsible: (a) for all tax liability associated with payments received from Users and through the Service, and that Xip will not withhold any taxes from payments to Creator; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that Creator is not covered by or eligible for any insurance from Xip; (c) for determining whether Creator is required by applicable law to issue any particular invoices for the Creator’s fees and for issuing any invoices so required; (d) for determining whether Creative is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to Creator’s fees and remitting any such taxes or charges to the appropriate authorities, as appropriate; and (e) if outside of the United States, for determining if Xip is required by applicable law to withhold any amount of the Creator’s fees and for notifying Xip of any such requirement and indemnifying Xip for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Xip, Creator agrees to promptly cooperate with Xip and provide copies of Creator’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Creator is engaging in an independent business as represented to Xip.
(d) Independent Contractors.
No relationship (such as partnership, agent, joint venturer, or employee) between you and Xip is created by the Terms or your participation on the Service. You acknowledge that you are not an employee or agent of Xip but are, like Users, only users of the Service. You shall act in accordance with this status and shall not hold yourself out as an officer, employee or agent of Xip, nor make any claim based on any right or privilege applicable to Xip’s employees. Under no circumstances shall you look to Xip as your employer, or as a partner, agent, or principal. Nothing regarding your participation on the Service will be considered as an endorsement, referral or recommendation by Xip of you or the answers you provide and you will not, either on the Service or in any other forum or by any other means, suggest such an endorsement.
Nothing in this Agreement shall in any way be construed to constitute the Creator as an agent, employee, or representative of Xip. Without limiting the generality of the foregoing, the Creator is not authorized to bind Xip to any liability or obligation or to represent that the Creator has any such authority. Creator acknowledges and agrees that Creator is obligated to report as income all compensation received by Xip pursuant to this Agreement. Creator agrees to and acknowledges the obligation to pay all self-employment and other taxes on such income. Creator will receive no Xip-sponsored benefits such as, but not limited to, paid vacation, sick leave, medical insurance, and 401k participation. If Creator is reclassified by a state or federal agency, court, or arbitrator as Xip’s employee, Creator will become a reclassified employee and will receive no benefits from Xip, except those mandated by state or federal law, even if by the terms of Xip’s benefit plans or programs of the Company in effect at the time of such reclassification, Creator would otherwise be eligible for such benefits.