Terms of Service
These Terms of Service were updated on April 11, 2023.
Welcome!
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”).
Please read the Terms carefully before using the Service because they are a legally binding agreement between you (“you,” or “your” or “user”) and Xip Technologies, Inc. If you don’t agree to the Terms, as well as our Privacy Policy, which is incorporated herein by reference, you may not use the Service. If you are entering into the Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the Terms. If you do not have such authority, you must not accept the Terms or use the Service on behalf of such entity. The Service is only available to you if you have entered the age of majority in your jurisdiction of residence and are fully able and competent to enter into, abide by, and comply with the Terms.
Certain specific services, promotions or programs, including if you apply to become an Instructor on the Service, 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 Service.
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 OR ACCESSING 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.
- Modifications
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”). - Our Service
Through our Service, users will receive personalized instruction (each, a “Learner”) from world class instructors (each an “Instructor”) by subscribing to and accessing an Instructor’s program and instruction (“Learning Content”). Each Instructor has sole discretion to determine how to personalize their Learning Content for a Learner, which may be, for example, through messages, video, and goal tracking. We’ll refer to anything a Learner provides to an Instructor as “Learner Submissions”. The term “you”, “your”, or “user” will refer generically to any user of the Service, whether a Learner, an Instructor, or otherwise.
You may apply to become an Instructor on the Service. Xip, in its sole discretion, may accept or reject your application to become an Instructor. If your application to become an Instructor is approved by Xip, additional terms, including payment terms, must be agreed to between us and will, in addition to the Terms, apply to your use of the Service.
We may update, upgrade, revise, or change the Service and its features and functionality (collectively, “Updates”) at any time. Updates are considered part of the Service. - Your Xip Account
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 may manage your subscription to the Service, including accessing past payment history, through your Account or by contacting us at support@xip.co.
You must be at least 18 years or older to use our Service 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 occasion liability for Xip. 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. We also reserve the right to not allow you to sign up for an Account in the first instance. - Restrictions
You will not:
• violate any law, regulation, or court order;
• violate, infringe, or misappropriate the intellectual property, privacy, publicity, moral, or other legal or proprietary rights of any third party;
• take any action (even if requested by another) that is, or submit, post, share, or communicate anything that is, or that incites or encourages action that is, explicitly or implicitly: illegal, abusive, harassing, threatening, hateful, racist, derogatory, harmful to any reputation, pornographic, indecent, profane, obscene, or otherwise objectionable (including nudity);
• send advertising or commercial communications, including spam, or any other unsolicited or unauthorized communications through the Service;
• engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from our Service, including from any user of our Service;
• transmit any virus, other computer instruction, or technological means intended to, or that may, disrupt, damage, or interfere with our Service or the use of computers or related systems;
• stalk, harass, threaten, or harm any third party; impersonate any third party;
• participate in any fraudulent or illegal activity, including phishing, money laundering, or fraud;
• use any means to scrape or crawl any part of our Service;
• attempt to circumvent any technological measure implemented by us, any of our providers, or any other third party (including another user) to protect us, our Service, users, or any other third party;
• access our Service to obtain information to build a similar or competitive website, application, or service;
• attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide our Service; or
• advocate, encourage, or assist any third party in doing any of the foregoing.
We reserve the right to decide whether your use of the Service violates the Terms and may, at any time, without notice or liability to you, and in our sole discretion, suspend or terminate your access to the Service, remove or ban you (and any Account you create or control), or take other appropriate action, in our sole discretion, for violation of the Terms. - Intellectual Property Rights Ownership and Licenses
You acknowledge and agree that all Learning Content is owned by either the Instructor and/or Xip. Learners are purchasing a subscription to access and use an Instructor’s Learning Content. The Learning Content is not being sold to Learners.
Subject to Learner’s payment in full and the Terms, the Instructor and/or Xip, as applicable, grants to Learner a non-exclusive, royalty-free, fully paid, worldwide, non-sublicensable, revocable, limited license to use the Learning Content for the applicable subscription term solely for Learner’s own personal, non-commercial, and non-promotional purposes. Learner may not publicly display/post Learning Content unless either the Instructor and/or Xip, as applicable, has pre-approved the same in writing (email acceptable). Learner’s use of the Learning Content may not harm or potentially harm the Instructor, Xip, another user, or a third party.
Learners may use Learning Content only in accordance with the Terms. We reserve the right to remove Learning Content from our Service at any time for any reason without any notice to Learners.
We or our licensors own all right, title, and interest in and to: (i) our Service and the “look and feel” of our Service, including, but not limited to, all software, ideas, processes, data, text, media, and other content available on our Service (individually, and collectively, “Xip Materials”); and (ii) our trademarks, logos, and other brand elements (“Xip Marks”). Our Service, the Xip Materials, and Xip Marks are each protected under U.S. and international laws. You may not duplicate, copy, or reuse any portion of our Service, the Xip Materials, or Xip Marks or the HTML/CSS, JavaScript, visual design elements, or concepts in any of the foregoing, without our prior express written consent.
We will own and have the unrestricted right to use and incorporate into the Service or other Xip offerings, any suggestions, enhancement requests, recommendations, or other feedback provided by you relating to the Service. - Your Materials
You 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”) Learner Submissions (if you’re a Learner), Learning Content (if you’re an Instructor and we don’t already own the Learning Content), and any other materials or information (collectively “Your Materials”) you provide to Xip or other users through the Service, for the purposes of operating and providing our Service, developing and improving our offerings, and advertising, marketing, and promoting our Service and other offerings.
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 submit any of Your Materials through the Service that are confidential or that contain or include any information that you do not have the right to disclose or that you do not wish to be disclosed. Xip will not be responsible or liable for any use or disclosure of Your Materials, including any personal information belonging to you or a third party. In addition and for the avoidance of doubt, if you are an Instructor, 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 Learners that you have interactions with.
We do not control the information provided by other 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 agree that Xip is not responsible for the acts or omissions of any users on the Service. - Information Not Advice; No Client-Professional Relationship
The Learning Content on the Service provided by Instructors is to be used by Learners for general information and entertainment purposes only, and not as a substitute for in-person evaluation or specific professional (medical, legal, veterinary, tax, financial, etc.) advice. Instructors do not intend to form, and do not form attorney-client or doctor-patient relationships or any other professional relationship with Learners or other users. The laws, regulations, other governing authorities, standards, practices and procedures that apply to Learner Submissions 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 Instructors) 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 an Instructor), Xip (or the Instructor) shall have the right, but not the obligation, to extract, delete, remove and otherwise remediate such information from its systems and/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.
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 in Learning Content. Reliance on any information or Learning Content provided by Xip or Instructors, or other users of the Service is solely at your own risk.
No professional-client relationships are formed on the Service and communications on the Service shall not be the subject of any associated privileges. For further clarity, Learner Submissions and Learning Content are not protected by attorney- client, doctor-patient, or any other privilege, and may be read, collected, and used by others. - Learner Fees and Payment Terms
Subscription fees for Learners are agreed to at the time a Learner subscribes to the Service and vary based on the Learning Content the Learner subscribes to. All fees for the Service will be in US Dollars, unless otherwise specified at the time of payment, and will be paid in advance of the applicable subscription term. All subscriptions are non-cancelable and all fees are non-refundable, unless otherwise agreed to by the parties. Fees do not include any taxes, including, but not limited to, value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (“Taxes”). Learner is responsible for paying all Taxes associated with its purchases hereunder. Learner agrees that when it subscribes to our Service, we will charge your payment method for the applicable fees. Learner authorizes Xip (through its third party payment processor, as further set forth below) to charge your approved credit card for recurring charges, including applicable Taxes, for the Service, as well as all other charges incurred under the Terms. If there is a change to Learner’s credit card account information, including expiration date, you must update the payment information in your Account to avoid suspension or termination of the Service. We may also update your payment information with information provided by the payment service providers, and you authorize Xip to continue to charge your credit card following any update to your information.
We use various third party providers of payment processing services (collectively, “Payment Processor Services”) to process payments on the Service. 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 use Stripe Payments, Inc. (“Stripe”) as our third party electronic payment processing provider for payment services (e.g., card acceptance, merchant settlement, and related services) (“Payment Services”) for payments related to the Service. By making use of some or all of these Payment Services on the Service, you agree to be bound by Stripe’s terms and conditions (available at https://stripe.com/us/terms/) as well as its privacy policy (available at https://stripe.com/us/privacy/) and hereby consent and authorize us to delegate the authorizations and share the information you provide to us with our third party electronic payment processing provider(s) to the extent required to provide the Payment Services to you. Stripe may also be contacted directly for payments support at https://support.stripe.com/email.
We may suspend or cancel your subscription 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 fees and payment procedures, including payment options and terms, either immediately upon posting on our Service or by other notice to you. Any change in subscription fees will be reflected upon renewal of your subscription term.
To protect against fraud, unauthorized transactions (such as money laundering), claims, or other liabilities, payment information in connection with withdrawals is collected by either Xip or Xip’s providers of Payment Processor Services or Payment Services. Providers of Payment Processor Services or Payment Services may also collect such other information as necessary for the purpose of processing withdrawal payments. Xip is not exposed to the payment information provided to providers of Payment Processor Services or Payment Services, and this information is subject to the privacy policy applicable to the provider of the Payment Processor Services or Payment Services, as further described in the Xip Privacy Policy.
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 any interaction made on Xip or need any additional information about a transaction, please contact us at support@xip.co. We have the sole discretion to determine how billing disputes will be resolved and we will do our very best to make sure you have a great experience with Xip. - Term; Termination
The Terms start as indicated above and continue until any subscriptions granted in accordance hereunder have expired or been terminated.
Subscription details are agreed to and established at the time a Learner purchases a subscription to the Service. Learners can find their subscription details, including renewal dates, and manage their subscription by accessing their Account or by contacting us at support@xip.co.
Without limiting any other rights set forth in the Terms, we reserve the right to suspend or terminate your Account and/or your access to our Service (or otherwise take any action on your Account), (i) if you are fifteen (15) days or more overdue on a payment, (ii) if we deem such action necessary as a result of your breach of Section 4, (iii) if we reasonably determine such action is necessary to avoid harm to us (including the security of the systems used to provide the Service) or users, or (iv) as required by law or at the request of governmental entities. For example, if you are an Instructor, we reserve the right to withhold any payments due to you, terminate your Account, or to refuse to allow you to become an Instructor, if we become aware of alleged misconduct, your material breach of the Terms, or other behavior that could do harm to our reputation. If you violate any of the Terms, your right to use our Service automatically terminates.
Upon any expiration or termination, you will immediately cease any further use of the Service.
Any terms that by their nature extend beyond expiration or termination of the Terms will survive. - Third Party Links
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 Instructor 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. IT IS THE RESPONSIBILITY OF THE USER TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ANY 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 PRODUCT, SERVICE, OR OTHER CONTENT. - Indemnification.
You agree to indemnify and hold Xip, its parents, subsidiaries, officers, directors, shareholders, employees, agents, joint venturers, consultants, successors and assigns (and, if you’re a Learner, each Instructor you have an interaction with) harmless from and against all losses, costs, liabilities and expenses, including reasonable attorneys’ fees, incurred by us (or an Instructor) in connection with any claims or allegations asserted by any third-party that are in any way due to, or arise out of, your use of or conduct on the Service. We may select counsel for and control the defense of any claim for which you are indemnifying. You will reasonably cooperate with us in connection with any claim. - DISCLAIMER OF WARRANTIES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE XIP SERVICE, SOFTWARE, AND RELATED DOCUMENTATION (AND LEARNING CONTENT, AS APPLICABLE) ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR 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 THE 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 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 (INCLUDING FROM INSTRUCTORS). 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 LEARNER SUBMISSIONS AND WILL HAVE NO LIABILITY WHATSOEVER FOR LEARNING CONTENT. INTERACTIONS AND VIEWING AND USE OF LEARNING CONTENT ARE AT A USER’S OWN RISK. - LIMITATION OF LIABILITY.
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 SERVICE OR THE TERMS BASED ON ANY THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THE SERVICE WOULD NOT BE PROVIDED WITHOUT SUCH EXCLUSION. IN NO EVENT WILL OUR AGGREGATE LIABILITY, AND THE AGGREGATE LIABILITY OF OUR PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, JOINT VENTURERS, CONSULTANTS, SUCCESSORS OR ASSIGNS, FOR DIRECT DAMAGES UNDER THIS AGREEMENT, TO YOU OR ANY THIRD PARTIES, UNDER ANY CIRCUMSTANCE, EXCEED THE GREATER OF (A) THE AMOUNT OF FEES PAID 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. - Class Action Waiver, Abirritation Agreement, and Waiver of Certain Rights.
(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 THE 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 the Service (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 14 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 14 will continue in full force and effect. No waiver of any provision of this Section 14 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 14 will survive the termination or expiration 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 for your interactions 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 14 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. - Digital Millennium Copyright Act Notice
We respond to notices of alleged copyright infringement and terminate access to our Service for repeat infringers. If you believe that materials on the Service infringe a copyright, please send the following information to the Copyright Agent named below:
• your address, telephone number, and email address,
• a description of the work that you claim is being infringed,
• a description of the material that you claim is infringing and are requesting be removed along with information about where it is located,
• a statement that you have “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.”
• an electronic or physical signature of the copyright owner (or a person authorized to act for the copyright owner); and
• a statement by you, made under penalty of perjury, that the information you are providing is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
Copyright Agent:
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 Email: copyright@xip.co - Miscellaneous
The Terms and any mutually agreed to addenda constitute the entire agreement between the parties with respect to the subject matter herein and supersede all other written or oral agreements and representations related thereto. 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 Xip. 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. Subject to Section 14, 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 the Terms or 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. You may not assign the Terms or rights and obligations hereunder without our prior written consent and any assignment in violation of this provision is void and without effect. You acknowledge and agree that the relationship between you and Xip is solely that of independent contracting parties. You and Xip 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, except as otherwise expressly agreed to, agency relationship, is intended or created by the Terms or your participation in the Service. You have no authority to bind Xip and you will not hold yourself out as an employee, agent, or authorized representative of Xip.
