BY ACCESSING, DOWNLOADING, USING, PURCHASING, PAYING TO USE AND/OR SUBSCRIBING TO THE XPARTNER SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY, THESE TERMS, AS THEY MAY BE AMENDED FROM TIME TO TIME. IF YOU DO NOT AGREE WITH THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT USE THE XPARTNER SERVICES.
The XPartner Services are only available for individuals eighteen (18) years of age or older. By accessing or using the XPartner Services, you represent and warrant that you are currently eighteen (18) years old or over and that you are capable of lawfully entering into and performing all the obligations set forth in these Terms. You also represent and warrant that you have never been convicted of an indictable offense or any criminal offense involving sexual misconduct or otherwise. You further confirm that you (i) have not previously been suspended, removed, deactivated, terminated or blocked from the XPartner Services; and (ii) are not a competitor of XPartner and are not using the XPartner Services for reasons that are in competition with XPartner or other than for its intended purpose.
3. Use Of The XPartner Services
You agree that you will only use the XPartner Services, including the posting of any content through the XPartner Services, in a manner consistent with these Terms and compliant with any and all applicable local, provincial, federal and international laws and regulations.
Registration. You will need to register and create only one (1) unique XPartner account for your use of the XPartner Services (your “XPartner Account”). To register a XPartner Account, you may either (a) register by using a valid email address and your phone number with password (we may ask you to validate your XPartner Account via SMS) and provide certain information about yourself as prompted by the registration form; or (b) register by using your Facebook login, meaning that you are authorizing us to access certain information in your Facebook account, including, but not limited to, information about Facebook friends you might share in common with other XPartner Users. By allowing us to access your Facebook account, you expressly acknowledge and agree that we may obtain and share your name and profile pictures, as well as the name and profile picture of your Facebook friends who are common Facebook friends with other XPartner Users in your network or geolocation. You will not include any telephone numbers, street addresses, URLs, multimedia, artworks downloaded from external sources, email addresses or any other contact information in your profile or in any other publicly viewable User Content (as defined in Section 4) or other communications made in connection with your use of the XPartner Services. You understand and agree that anyone may be able to view any information you choose to make publicly available.
XPartner Account Security. You understand that you are fully responsible for maintaining the confidentiality of your XPartner Account and you are responsible for all activities that occur under your XPartner Account, including the purchase of any of our Paid XPartner Services (as described in Section 17). You are solely responsible for selecting an appropriate username and for any and all disclosures you make of your username to others, including any selection or disclosure that makes you personally identifiable. You are responsible for maintaining the confidentiality of your XPartner Account login username and password and are fully responsible for all activities that occur under your XPartner Account. In the event that you forgot your login information and wish to retrieve it, you will be directed to a password recovery section where you will be asked for the email address or phone number associated with your XPartner Account. You agree (a) to immediately notify XPartner if you suspect any unauthorized use of your XPartner Account or any other breach of security, and (b) to use particular caution when accessing your XPartner Account from a public or shared computer and/or mobile device so that others are not able to view or record your personal information. For instance, never give out your password, and remember to lock your mobile device when it is not in use. Please email us at [email protected] with the subject line: XPartner Account Security Breach if you believe your XPartner Account has been accessed by an unauthorized person. You acknowledge that XPartner is not, and will not, be liable or responsible for any losses or damages arising from the theft or misappropriation of your XPartner Account. You further acknowledge and agree that XPartner is not responsible for, and has no control over, any security breaches experienced on any third party Social Networking Site (as defined below).
Exclusive Use. You will only use the XPartner Services for your sole, personal use and not in connection with any commercial activities. You will not authorize others to use the XPartner Services, gain access to your XPartner Account or otherwise attempt to transfer your right to use the XPartner Services to any other person or entity. XPartner reserves the right to (a) disable, block, suspend or deactivate any User’s use of or access to the XPartner Services, including the location information or profiles of other Users, or (b) terminate any User’s XPartner Account, for any reason whatsoever and without notice.
Data Usage Charges. The use of the XPartner Services on your mobile device may require use of your data service. Depending on the plan that you have with your cellular carrier, you could incur data charges. You should check with your cellular carrier and determine how you will be charged for data usage. XPartner is not responsible for your data usage and will not be responsible for data charges that you may incur while using the XPartner Services. You are responsible for any Internet connection, data or other fees assessed by your cellular carrier to access the XPartner Services via your wireless device, including any data plan charges, toll, out-of-area, roaming, or other wireless device connection charges.
Interactions with Other Users. You assume all risk when using the XPartner Services, including but not limited to all risks associated with any online or offline interactions with others, including dating. While XPartner may signal that Users who purchase Subscriptions (as defined in Section 17) have valid iTunes accounts by placing a “verified” checkmark on their XPartner Account, you should understand that XPartner does not verify any other information about that User. You acknowledge that XPartner does not routinely screen its Users, inquire into the background of its Users, attempt to verify information provided by its Users (except as provided above) or conduct criminal screenings of its Users so please proceed with caution. XPartner does not make any representations, warranties or guarantees as to the conduct of its Users, information provided by Users, or their compatibility with you.
You alone are responsible for your involvement with other Users. You agree that XPartner will not be responsible for any losses or damages incurred as the result of any such interactions with other Users. XPartner reserves the right, but has no obligation, to monitor disagreements between you and other Users. Please take all necessary precautions when meeting other Users, especially if you decide to meet in person. We have created Safety Tips that you may find helpful and we suggest that you review these before you start using the XPartner Services. You agree to treat all other Users with dignity and respect and comply with these Terms especially the User Conduct rules set forth in Section 3(G).
No Commercial Solicitation or Advertising. You will not engage in any advertising or solicitation to buy or sell any products or services through the use of the XPartner Services and you will not transmit any chain letters, junk or spam email or communications to other Users. Additionally, you will not use any information obtained from the XPartner Services in order to contact, advertise to, solicit or sell products or services to any User without their prior explicit consent.
User Conduct. XPartner is not responsible or liable in any manner for the conduct of its Users, whether or not such conduct is in connection with the use of the XPartner Services. You acknowledge that you use the XPartner Services entirely at your own risk. In order to keep use of the XPartner Services fun and safe, you agree not to do any of the following in connection with the XPartner Services or the Users thereof:
use the XPartner Services in any unlawful manner or in a manner that is harmful to or violates the rights of others;
engage in any unlawful, lewd, harassing, obscene, intimidating, threatening, predatory or stalking behaviour;
use the XPartner Services in connection with hazardous environments requiring fail-safe performance or any application in which the failure or inaccuracy of that application or the XPartner Services could lead directly to death, personal injury, or severe physical or property damage. i.e. driving while using the XPartner Services;
use the XPartner Services in any manner that could disrupt, damage, disable, overburden, impair or affect the performance of the XPartner Services or XPartner’s computer systems/technology or interfere with or attempt to interfere with any other User’s use of the XPartner Services or User’s computer systems/technology;
impersonate any person or entity, or misrepresent your age, identity, affiliation, connection or association with, any person or entity;
make any commercial use of the XPartner Services or promote or solicit involvement in or support of a political platform, religion, cult, or sect;
defraud, swindle or deceive other Users;
disseminate another User’s personal information without his or her permission, or collect or solicit another User’s personal information for commercial or unlawful purposes;
solicit or engage in gambling or any similar activity or any illegal or unlawful activity;
use any scripts, bots or other automated technology to scrape or access the XPartner Services;
use the XPartner Services for any phishing, trolling or similar activities;
use the XPartner Services to redirect Users to other sites or encourage Users to visit other sites;
harvest or collect email addresses or other contact information of other Users from the XPartner Services by electronic or other means or use the XPartner Services to send, either directly or indirectly, any unsolicited bulk email or communications, unsolicited commercial email or communications or other spamming or spimming activities;
distribute unsolicited commercial messages or spam, and or use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure, security features or presentation of the XPartner Services or its contents;
attempt to access any XPartner Services that you are not authorized to access; or
permit or allow other people or third parties to access and use the XPartner Services via your XPartner Account.
Reporting Violations. If you wish to report any violation of these Terms by others, including Users, you may do so by using the report button (“Report”) located in the XPartner Services. You may click on the Report button located in the drop down menu on a User’s profile in order to flag Users that are in violation. While we will make reasonable efforts to review XPartner Accounts that are flagged in a timely manner, we are under no obligation to remove the flagged XPartner Account and in no way represent that we will remove or otherwise address flagged XPartner Accounts.
Enforcement. You understand and agree that if XPartner believes in its sole discretion that you have violated these Terms, misused the XPartner Services or behaved in a way that could be regarded as inappropriate, unlawful, illegal or unsafe, XPartner may, among other things, investigate, take legal action against you and/or terminate your XPartner Account and cancel your subscription and/or membership without notice to you.
4. User Content
Definition; Responsibility for User Content. You are solely responsible for the content and information that you provide, publish, transmit, display or otherwise communicate to XPartner through the XPartner Services or to other Users (collectively referred to as “post”), including without limitation, messages, data, text, photos, video, music, graphics, links or other materials posted through text, messages, photos and profile information (your submissions and posts as well as those of other Users, collectively, are “User Content”). XPartner does not control, take responsibility for or assume liability for any User Content posted by you, other Users or any third party, or for any loss or damage thereto, nor is XPartner liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity that you encounter.
Accuracy of Information. You will not post any inaccurate, misleading, incomplete or false information or User Content to the XPartner Services or to any other User through the XPartner Services. You agree that all images posted to your XPartner Account are of you. You may be required to supply certain information and post a photo of yourself to use the XPartner Services.
No Duty to Review User Content. Although you understand and acknowledge that XPartner has no duty to prescreen, review, control, monitor or edit the User Content posted by Users and is not liable for User Content that is provided by others, you agree that XPartner may, at its sole discretion, review, edit, refuse to accept or delete User Content at any time and for any reason or no reason without notice. You are solely responsible for creating backup copies and replacing any User Content that you post or store on the XPartner Services at your sole cost and expense. This includes XPartner’s right to modify or crop any photos you post to comply with XPartner’s policies, practices and procedures.
5. License of User Content to XPartner
XPartner claims no ownership or control over your User Content, except as otherwise specifically provided herein, on the XPartner Services or in a separate agreement. By submitting or posting User Content, you automatically grant, and you represent and warrant that you have the right to grant, to XPartner, its affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, fully paid, worldwide right and license to use, copy, publicly perform, publicly display, reproduce, adapt, modify and distribute such User Content furnished by you and to prepare derivative works of, or incorporate into other works, such information and User Content, and to grant and authorize sublicenses of the foregoing in any medium. You represent and warrant that the User Content and the public posting and use of your User Content by XPartner will not infringe or violate any third-party rights, including without limitation, any intellectual property rights or rights of privacy or publicity, or cause any harm to any third party or violate these Terms. You further represent and warrant that you have the written consent of each and every identifiable natural person in your User Content (including but not limited to any content you submit to XPartner to feature) to use such person’s name or likeness in the manner contemplated by the XPartner Services and these Terms, and each such person has released you from any liability that may arise in relation to such use. By posting User Content, you hereby release XPartner, directors, officers, shareholders, employees, contractors and agents from any claims that such use, as authorized above, violates any of your rights and you understand that you will not be entitled to any additional compensation for any use by XPartner of your User Content. You also grant XPartner the right to choose XPartner Accounts to feature on the XPartner Services for enhanced visibility at no extra cost, in the sole discretion of XPartner.
6. Use of Proprietary Information of Others
You will not post, copy, transfer, create any derivative works from, distribute, reproduce or show in any manner any copyrighted or trade-marked or other proprietary information or materials, including any User Content posted by other Users, without the prior consent of the owner of such proprietary rights. You acknowledge that information or materials available through the XPartner Services may have copyright protection whether or not it is identified as being copyrighted
We may provide notices to you in any of the following ways. First, we may email you at the email address that you provided when you created your XPartner Account. Second, we may present the notice on the XPartner Services. When we post notices on the XPartner Services, we post them in the area of the XPartner Services suitable to the notice. It is your responsibility to periodically review the XPartner Services for notices.
8. Prohibited Content
You will not post, transmit or deliver to any other User, either directly or indirectly, any User Content that violates any third-party rights or any applicable Canadian or international law, rule or regulation or is prohibited under these Terms or any other XPartner policy governing your use of the XPartner Services (“Prohibited Content”). Prohibited Content includes without limitation User Content that:
is obscene, pornographic, profane, defamatory, abusive, offensive, indecent, sexually oriented, lewd, threatening, harassing, inflammatory, inaccurate, misrepresentative, fraudulent or illegal;
promotes racism, sexism, homophobia, bigotry, hatred or physical harm of any kind against any group or individual;
is intended to, or does, harass, or intimidate any other User or third party;
may infringe or violate any patent, trade-mark, trade secret, copyright or other intellectual or proprietary right of any party, including User Content that contains others’ copyrighted content (e.g., photos, images, music, movies, videos, etc.) without obtaining proper permission first;
contains video, audio, photographs, or images of another person without his or her express written consent (or in the case of a minor, the minor’s legal guardian) or otherwise violates anyone’s right of privacy or publicity;
promotes or enables illegal or unlawful activities, such as instructions on how to make or buy illegal weapons or drugs;
violates someone’s data privacy or data protection rights;
contains viruses, time bombs, malware, trojan horses, cancelbots, worms or other harmful, or disruptive codes, components or devices;
contains any advertising, fundraising or promotional content; or
is, in the sole judgment of XPartner, objectionable or restricts or inhibits any person from using or enjoying the XPartner Services or exposes XPartner or its Users to harm or liability of any type.
9. Social Networking Sites
When you have enabled the use of our XPartner Services through a third-party social networking or similar site or mobile or other application (a “Social Networking Site”), such as Facebook as described earlier, Google+ or Twitter, you permit XPartner to access information about you that is made available to the XPartner Services through or from that Social Networking Site. The information obtained by XPartner varies by Social Networking Site and may be affected by the privacy settings you establish at that Social Networking Site, but can include information such as your name, profile picture, network, gender, username, user ID, age or birthday, language, location, country, interests, contacts list, friends lists or followers and other information.
If there is information about your “friends” or other persons you are associated with in your Social Networking Site account, the information that we obtain about those persons may also depend on the privacy settings such persons have activated with the applicable Social Networking Site. You acknowledge and agree that XPartner is not responsible for, and has no control over, any applicable privacy settings on any Social Networking Sites (including any settings related to any messages or advertisements about XPartner that the Social Networking Site may send to you or your friends). You may also unlink your Social Networking Site account from the XPartner Services by adjusting your settings on the Social Networking Site.
11. Intellectual Property Rights And Limited License
Other than your User Content, the XPartner Services and all materials therein, including, without limitation, software, images, text, graphics, designs, illustrations, XPartner logos, patents, trade-marks, service marks, copyrights, photographs, audio, videos, music, information, data, other files and the arrangement thereof and User Content belonging to other Users (the “Proprietary Materials”), and all intellectual property rights related thereto, are the exclusive property of XPartner and its licensors (including other Users who post User Content to the XPartner Services). Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such intellectual property rights of XPartner.
You are granted a limited, non-sublicensable license to access and use the XPartner Services and Proprietary Materials, subject to these Terms. You agree that you will not:
copy, modify, publish, adapt, sublicense, translate, sell, distribute, transmit, perform, display, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Proprietary Materials or the XPartner Services or cause others to do so;
“frame” or “mirror” any part of the XPartner Services or the Proprietary Materials, without our prior written authorization;
use meta tags or code or other devices containing any reference to XPartner or the XPartner Services in order to direct any person to any other site for any purpose;
resell or make any commercial use of the XPartner Services or Proprietary Materials;
use any data mining, robots, spiders or similar data gathering or extraction methods or otherwise collect any pictures, descriptions, data or other content from the XPartner Services or Proprietary Materials;
forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the XPartner Services;
use any automated methods or processes to create XPartner Accounts or access the XPartner Services or Proprietary Materials; or
use the Proprietary Materials or the XPartner Services other than for their intended purpose. Any use of the XPartner Services or Proprietary Materials other than as expressly authorized herein, without the prior written consent of XPartner, is strictly prohibited and will violate and terminate the license granted herein. Such unauthorized use may also violate applicable Canadian or international laws, including without limitation copyright and trade-mark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. XPartner reserves all rights not expressly granted herein in the XPartner Services and the Proprietary Materials. This license is revocable at any time.
“XPARTNER”, XPartner’s logos and any other trade names or slogans contained in the XPartner Services are trade-marks or service marks of XPartner, its partners or its licensors and may not be copied, imitated or used, in whole or in part, without the prior written permission of XPartner or the applicable trademark holder. In addition, the look and feel of the XPartner Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trade mark and/or trade dress of XPartner and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trade-marks, registered trade-marks, product names and company names or logos mentioned in the XPartner Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trade-mark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
13. Third Party Content
XPartner may provide third party content on the XPartner Services and may provide links to web pages, applications, mobile apps, sites and content of third parties (collectively the “Third Party Content”) as a service to those interested in this information. XPartner does not control, endorse or adopt any Third Party Content and expressly disclaims any and all representations, warranties or conditions of any kind regarding the Third Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that XPartner is not responsible or liable in any manner for any Third Party Content and XPartner undertakes no responsibility to update or review any Third Party Content. Users use such Third Party Content contained therein at their own risk.
14. Links to Third Party Sites or Resources
XPartner and its licensees may publicly display advertisements and other information adjacent to your User Content. You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you.
16. End User Licenses
License Grant. Subject to these Terms, XPartner hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the XPartner Services for one (1) XPartner Account for your personal, noncommercial use. XPartner does not represent or warrant that the XPartner Services will be compatible with your web browser and/or mobile device at any time.
Restrictions. You may not: (i) modify, disassemble, decompile or reverse engineer the XPartner Services, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the XPartner Services to any third party or use the XPartner Services to provide time sharing or similar services to any third party; (iii) make any copies of the XPartner Services; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the XPartner Services, features that prevent or restrict use or copying of any content accessible through the XPartner Services, or features that enforce limitations on use of the XPartner Services; or (v) delete the copyright and any other proprietary rights notices on the XPartner Services.
Software Updates. You acknowledge that XPartner may from time to time issue upgraded versions of the XPartner Services, and may automatically electronically upgrade the version of the XPartner Services that you are using. You consent to such automatic upgrading, and agree that these Terms will apply to all such upgrades. You agree that XPartner will not be liable to you for any such modifications.
Rights Reserved. The foregoing license granted under these Terms is not a sale of the XPartner Services or any copy thereof and XPartner or its third party partners or suppliers retain all rights, title, and interest in the XPartner Services (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. XPartner reserves all rights not expressly granted under these Terms.
App Stores. You acknowledge and agree that the availability of the XPartner Services is dependent on the third parties from which you received the XPartner Services, e.g., Google Play or the Apple app store (collectively “App Stores”). You acknowledge that these Terms are between you and XPartner and not with the App Stores and that each App Store may have its own terms and conditions to which you must agree before downloading the XPartner Services from it. You agree to comply with, and your license to use the XPartner Services is conditioned upon your compliance with, all applicable terms and conditions of the particular App Store.
17. Paid XPartner Services
General. XPartner makes available several paid XPartner Services. Firstly, you may purchase virtual currency (“XPartner Coins”) for use with the XPartner Services for the amounts described on the XPartner Software. You may also from time to time, obtain XPartner Coins or other virtual items by engaging in certain actions (for example, by downloading third party apps). XPartner Coins and such other virtual items are referred to collectively as “Virtual Goods”. Secondly, you may purchase subscriber-level access that unlocks premium features and enhancements of the XPartner Services (a “Subscription”) for the amounts described on the XPartner Software.
XPartner does not receive or process payments or credit card information directly. You may purchase Paid XPartner Services through an App Store such as Google Play account and/or Apple iTunes account (a “Third Party Account”). If you purchase any XPartner Services that we offer for a fee (the “Subscription Fees”), including without limitation Virtual Goods, XPartner Coins, and/or a Subscription to the XPartner Services (collectively, the “Paid XPartner Services”), you authorize XPartner to collect currently the iTunes unique transaction IDs and receipts data. If you purchase any Paid XPartner Services through the Third Party Account, the Subscription Fees for these Paid XPartner Services will appear through your Third Party Account. Please note that XPartner does not control Third Party Account terms and conditions so please review these carefully. You also agree to pay the Subscription Fees for the Paid XPartner Services (including without limitation periodic fees as described on the XPartner Software as they become due plus all related taxes). Any and all payments made to XPartner for use and access to the XPartner Services, including without limitation, any Subscription Fees for the Paid XPartner Services, are final and all charges are nonrefundable.
AUTOMATIC RENEWAL OF SUBSCRIPTIONS. When you pay for a subscription through a Third Party Account and you do not cancel your subscription prior to the end of the subscription term, your subscription for the XPartner Services will continue indefinitely until cancelled by you. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically continue for an additional equivalent period, at the price you agreed to when subscribing. You agree that your XPartner Account will be subject to this automatic renewal feature. You acknowledge and agree that your Third Party Account will be automatically charged for such subscription fees, plus any applicable taxes, upon each such automatic renewal. You acknowledge that your subscription is subject to automatic renewals and you consent to and accept responsibility for all recurring charges through a Third Party Account based on this automatic renewal feature without further authorization from you and without further notice except as required by law.
CANCELLATION OF SUBSCRIPTIONS. When you purchase a subscription through a Third Party Account, you will need to cancel your subscription through that third party, an App Store, not XPartner and in accordance with that third party’s terms and conditions. Cancellations are effective the following billing period in which payment is due. If you cancel your subscription your subscription benefits will continue until the end of your then current subscription term, but your subscription will not be renewed after that term expires. You will not be entitled to a prorated refund of any portion of the subscription fees paid for the then current subscription term.
18. Free Trials And Promotions
19. Modification Of These Terms
We reserve the right, in our sole discretion, to change, modify, add, or remove portions of any of the terms and conditions contained in these Terms including any policy or guideline applicable to the XPartner Services at any time. Unless otherwise specified, any changes or modifications will be effective immediately upon posting of the revisions on the XPartner Services, and your continued use of the XPartner Services after such posting will constitute your acceptance of such changes or modifications. You should from time to time review the Terms and any policies and documents incorporated in them to understand the terms and conditions that apply to your use of the XPartner Services. The Terms will always show the “last updated” date at the top. If you do not agree to any amended Terms, you must stop using the XPartner Services. If you have any questions about these Terms, please email us at the contact address below. These changes will be effective immediately for new and current Users of the XPartner Services.
XPARTNER PROVIDES THE XPARTNER SERVICES AND THE PROPRIETARY MATERIALS AND THE XPARTNER SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, XPARTNER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, ARISING FROM STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT TO THE XPARTNER SERVICES AND THE PROPRIETARY MATERIALS, INCLUDING ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, TITLE, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
XPARTNER DOES NOT REPRESENT AND WARRANT THAT (A) YOUR USE OF THE XPARTNER SERVICES OR PROPRIETARY MATERIALS WILL BE SECURE, UNINTERRUPTED, COMPLETE, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, (B) ANY DEFECTS IN THE XPARTNER SERVICES OR PROPRIETARY MATERIALS WILL BE CORRECTED OR (C) THE XPARTNER SERVICES AND PROPRIETARY MATERIALS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. XPARTNER DISCLAIMS LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, THE CONNECTIVITY AND AVAILABILITY OF THE XPARTNER SERVICES OR THE DELIVERY OF ANY COMMUNICATIONS.
XPARTNER HAS NO ANY OBLIGATION TO VERIFY THE IDENTITY OF OR SCREEN THE PERSONS SUBSCRIBING TO OR USING THE XPARTNER SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF THE XPARTNER SERVICES BY OTHER USERS OF THE COMMUNITY. THEREFORE, XPARTNER DISCLAIMS ANY AND ALL LIABILITY FOR YOUR INTERACTIONS WITH AND THE CONDUCT OF OTHER USERS AND FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION.
XPARTNER DOES NOT: (i) GUARANTEE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION ON THE XPARTNER SERVICES OR ANY RESULTS FROM YOUR USE OF THE XPARTNER SERVICES; OR (ii) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY OR LIABILITY FOR THE CONDUCT OF ANY USERS OR FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN XPARTNER. UNDER NO CIRCUMSTANCES WILL XPARTNER BE RESPONSIBLE FOR ANY LOSSES, DAMAGES OR HARM OF ANY KIND RESULTING FROM ANY USER’S CONDUCT OR YOUR USE OF THE XPARTNER SERVICES OR FROM ANYONE’S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE XPARTNER SERVICES, OR TRANSMITTED TO OR BY ANY USERS.
21. LIMITATION OF LIABILITY; INDEMNITY
You hereby waive and agree not to assert any claims or allegations of any nature whatsoever against XPartner, its affiliates or subsidiaries, their sponsors, contractors, advertisers, vendors or other partners, any of their successors or assigns, or any of their respective officers, directors, agents or employees (collectively, the “Released Parties”) arising out of or in any way relating to your use of the XPartner Services or Proprietary Materials, including, without limitation, any claims or allegations relating to the alleged infringement of proprietary rights, alleged inaccuracy of User Content, or allegations that any Released Party has or should indemnify, defend or hold harmless you or any third party from any claim or allegation arising from your use of the XPartner Services. Your use of the XPartner Services and Proprietary Materials is entirely at your own risk.
Without limiting any of the foregoing, neither XPartner nor any other Released Party shall be liable to you for any direct, special, indirect, exemplary, consequential, punitive damages, or any other damages of any kind, including but not limited to loss of use, loss of profits, loss of data, loss of goodwill, data, or other intangible losses or other economic loss, whether in an action in contract, tort (including but not limited to negligence) or otherwise, arising out of or in any way connected with your use of the XPartner Services or any Proprietary Materials, including without limitation any damages caused by or resulting from: (i) your use or inability to use the XPartner Services or any Proprietary Materials; (ii) any third party claims that the use by you of any of the XPartner Services or Proprietary Materials violates any third party intellectual property right or privacy right; (iii) any failure of performance of the XPartner Services or any Proprietary Materials, whether related to mistakes, errors, omissions, interruptions, defects, delays in operation or transmission, deletion of files or email, computer viruses or any failure of performance (whether or not resulting from acts of god, communications failure, theft, destruction or unauthorized access to XPartner or any other Released Party’s records, programs or services); (iv) any damages arising from communications or transactions with other Users of the XPartner Services, whether through blogs, or otherwise, or persons that you meet through the XPartner Services; or (v) any other matters relating to the XPartner Services, Proprietary Materials, any User Submissions (as defined above), based in contract, tort, negligence, strict liability, fundamental breach, failure of essential purpose or otherwise, whether or not XPartner had any knowledge, actual or constructive, that you might incur such damages.
IN NO EVENT WILL THE TOTAL LIABILITY OF XPARTNER OR THE RELEASED PARTIES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE XPARTNER SERVICES OR PROPRIETARY MATERIALS EXCEED THE GREATER OF THE AMOUNT YOU HAVE PAID TO XPARTNER FOR USE OF THE XPARTNER SERVICES AND PROPRIETARY MATERIALS OR FIFTY (CDN$50) CANADIAN DOLLARS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN XPARTNER AND YOU.
You shall fully defend, indemnify and hold harmless XPartner and the other Released Parties from any losses, damages, liabilities, costs, expenses (including legal fees), claims and proceedings arising out of your use (or the use by any person to whom you have given access to your XPartner Account) of the XPartner Services, provision of User Content and the Proprietary Materials, including any claims made by any person that any of your User Content infringes the rights, including the intellectual property rights of any third party.
22. Applicable Law; Jurisdiction
The XPartner Services are controlled by XPartner and operated by it from its offices in Toronto, Ontario. All disputes, claims or other matters arising from or relating to your use of the XPartner Services, the Proprietary Materials and these Terms will be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, excluding the application of any conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms.
23. Dispute Resolution
Except where prohibited by applicable law, any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether preexisting, present or future) arising out of or relating to these Terms, the XPartner Services, User Content or posts, oral or written statements, advertisements or Promotions relating to these Terms or to the XPartner Services, or the relationships that result from these Terms, the XPartner Software, the XPartner Site, the XPartner Services, User Content or posts (collectively, a “Claim”) will be referred to and determined by a sole arbitrator (to the exclusion of the courts) pursuant to the Arbitration Act, 1991 (Ontario) as the same may be amended from time to time.
Accordingly, except where prohibited by applicable law, you hereby waive any right that you may have to commence or participate in any class action against XPartner related to any Claim and, where applicable, you also agree to opt out of any class proceedings against XPartner. If you have a Claim, you should give written notice to arbitrate at the address specified below. If we have a Claim, we will give you notice to arbitrate at your address provided in your Registration Data.
If arbitration as described in the immediately preceding paragraph is prohibited by applicable law, you agree that all Claims will be heard and resolved in a court of competent subject matter jurisdiction located in Toronto, Ontario.
You consent to the personal jurisdiction of such courts over you, stipulate to the fairness and convenience of proceeding in such courts, and covenant not to assert any objection to proceeding in such courts.
If you choose to access the XPartner Services and/or the XPartner Software and/or the XPartner Site from locations other than Ontario, you will be responsible for compliance with all local laws of such other jurisdiction and you agree to indemnify XPartner and the other Released Parties for your failure to comply with any such laws.
Unless otherwise provided, these Terms take effect upon your initial use of the XPartner Services and shall remain in effect until terminated as described below.
Termination by XPartner. Notwithstanding anything to the contrary in these Terms, XPartner may suspend, remove, deactivate, terminate or block your XPartner Account and your right to use the XPartner Services and may block or prevent your access to and use of the XPartner Services at any time in our sole discretion, for any reason, without explanation and without notice to you (including without limitation blocking Users from certain IP addresses). We also reserve the right to remove or block access to your XPartner Account information, User Content or data from the XPartner Services and any other records at any time at our sole discretion. In the event that we determine that your access to any of the XPartner Services is terminated, blocked, deactivated, removed or suspended at any time in our sole discretion, for any reason, without explanation and without notice or for cause, such as due to any breach or violation of these Terms, flagged conduct or content, third party complaints, infringement of the intellectual property rights of others, you agree that all fees then paid to XPartner by you will be nonrefundable.
Termination by You. In addition to any right to cancel your subscription pursuant to Section 17, you may deactivate your XPartner Account at any time by accessing “Settings” and selecting deactivate account or by emailing our customer support team at [email protected] with the subject line Please Deactivate My XPartner Account. After your XPartner Account has been deactivated, and after you have logged out of the XPartner Services, your profile will not be visible to other Users. If you do not reactivate your XPartner Account within sixty (60) days, your XPartner Account will be permanently terminated and closed but some of your information (including any User Content, photos, videos, images, text, messages or data you have posted to the XPartner Services) may remain in XPartner’s backup copies and logs for up to one (1) year.
Survival. Upon any termination, discontinuation or cancellation of the XPartner Services or your XPartner Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, Sections ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions. If these Terms expire or terminate for any reason, Sections 1, 5, 10-13, 16, 20-26, and any representation or warranty you make in these Terms, shall also survive indefinitely.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by XPartner without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. If any provision, or any portion thereof, of these Terms is held illegal, void, invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law and the remaining provisions will continue in full force and effect. The failure of XPartner to exercise or enforce any right or provision in these Terms shall not operate as a waiver of such right or provision.
26. Language Of These Terms
The language of these Terms is English. The English language version of these Terms will govern your relationship with XPartner.
27. Questions and Comments
If you have any questions regarding these Terms or your use of the XPartner Services, please contact us at:
Email: [email protected]