Xaxis, LLC (“Xaxis”) provides this website and its associated services (“Service”). In order to use this Service, you must read and agree with these terms (this “Agreement”). By using the Service, you agree as follows:
1. License Terms.
1.1 License Grant. Xaxis grants you (the “User”) the non-exclusive, non-transferable, revocable, limited right to access the Service for User's personal use on a personal computing device or mobile phone. Unless otherwise authorized, User may not use, copy, reproduce, modify, publicly perform or display, create derivative works of, sell, auction, loan, lease, rent, distribute, transfer or disclose all or any part of the Service (including, without limitation, any screenshots, videos, documentation or manuals relating to the Service) except as provided in this Agreement. All other rights are reserved to Xaxis.
1.2 License Restrictions. Unless otherwise authorized by this Agreement or Xaxis in writing, User shall not:
(a) Sublicense to, transfer, network, transmit, distribute, or permit use of the Service by, any third party;
(b) Reverse engineer, decompile, or disassemble any aspect of the Service;
(c) Transmit or communicate any data that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
(d) Harm minors in any way;
(e) Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
(f) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any data transmitted to other users;
(g) Transmit, access or communicate any data that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
(h) Transmit, access, or communicate any data that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(i) Transmit or communicate any data that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(j) Interfere with or disrupt the Service or other user’s use of the Service;
(k) Intentionally or unintentionally violate any applicable local, state, national or international law, including securities exchange and any regulations requirements, procedures or policies in force from time to time relating to the Service;
(l) Monitor traffic or make search requests in order to accumulate information about individual users;
(m) Modify, delete or damage any information contained on the personal computer of any other user;
(n) Use the Service in any way related to gambling or illegal lotteries or illegal sweepstakes;
(o) Harm the Service including using any program or other mechanism to slow or “crash” the network; and
(p) Allow usage by others in such a way as to violate this Agreement.
1.3 Indemnification. User (i) agrees to indemnify, defend and hold harmless, and (ii) hereby releases, Xaxis, its licensors, and their direct and indirect parent, subsidiary and sister corporations, and their respective officers, directors, employees, and agents from and against any and all losses, liabilities, claims, obligations, costs and/or expenses (including reasonable legal fees) which result from, arise out of or in connection with User’s use of the Service or activities related thereto or User’s violation of this Agreement.
1.4 Term of the Agreement. The grant of license herein, may be terminated by Xaxis at any time, for any reason or for no reason, in Xaxis's sole and absolute discretion, by providing written, electronic or emailed notice to User. User may, at any time and for any reason or for no reason, terminate this Agreement by uninstalling the Service. At termination, User shall erase all copies of the Service from User’s hardware.
2.1 Xaxis Intellectual Property. Except for the revocable, limited license expressly granted hereunder, Xaxis retains all rights, title and interests in and to all intellectual property rights associated with the Service and all copies thereof, use thereof by User, and all content and data in connection therewith including any information or data collected from Users. These rights include, but are not limited to, all intellectual property and other rights in and to User suggestions or comments, including those that may be used in modifying the Service. The Service is copyrighted and is protected by United States copyright laws and international treaty provisions as well as other laws. User acknowledges that the Service contains valuable trade secrets of Xaxis, and that Xaxis and/or its licensors own all intellectual property rights in and to the Service, including, without limitation, all patent rights, copyrights, inventions, trade secret rights, trade dress rights, trademark rights and intellectual property rights therein and thereto. User may not remove the copyright and other proprietary rights notices from the Service. User agrees that this Agreement shall be retained with all copies of the Service and documentation constituting the Service. User agrees to prevent any unauthorized copying or distribution of the Service. Except for the license as expressly provided herein, Xaxis does not grant User any express or implied right in any patents, copyrights, trademarks, or trade secret information of Xaxis and/or its licensors.
2.2 Licensed Intellectual Property. Xaxis, through arrangements with licensors, may use the Service to incorporate certain external intellectual property (“Licensed Intellectual Property”) into the Service. This Licensed Intellectual Property shall remain the property of the licensors and any and all intellectual property rights thereto shall remain with the licensors.
3. Injunctive Relief.
User acknowledges and agrees that a breach or threatened breach of any covenant contained in this Agreement would cause irreparable injury, that money damages would be an inadequate remedy and that Xaxis shall be entitled to temporary and permanent injunctive relief, without the posting of any bond or other security, to restrain User, from such breach or threatened breach. Nothing in this Section shall be construed as preventing Xaxis from pursuing any and all remedies available to it, including the recovery of money damages from User.
4. No Warranty; No Liability For Damages; No Support; Data.
4.1 No Warranty. USER ACKNOWLEDGES THAT THE SERVICE MAY WELL CONTAIN ERRORS AND DEFECTS. THE SERVICE IS PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY OF THE SERVICE IS WITH USER. SHOULD IT PROVE DEFECTIVE FOLLOWING THE RECEIPT BY USER, USER AND NOT XAXIS ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING OR REPAIR. Without limiting the foregoing, Xaxis does not ensure continuous, error-free, secure or virus-free operation of the Service. THESE DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT.
4.2 No Liability For Damages. TO THE GREATEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT SHALL XAXIS, ANY PARENT, SUBSIDIARY OR OTHERWISE RELATED COMPANY, OR EMPLOYEES, AGENTS, OFFICERS AND/OR DIRECTORS OF ANY OF THE ABOVE, BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL PUNITIVE OR OTHER DAMAGES OR LOST PROFITS, DATA OR BUSINESS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE EVEN IF ANY OF THE ABOVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.3 No Support. Xaxis does not provide any guaranteed support for the Service. However, Xaxis may provide an e-mail address and/or forum for User to send any questions and/or comments regarding the Service. Xaxis does not, however, make any representations or warranties as to the accuracy of any statements or advice provided in response to User's e-mail(s) and/or forum postings.
5. Dispute Resolution and Choice of Law.
5.1 Informal Resolution. To facilitate the resolution of any controversy related to this Agreement ("Dispute"), you and Xaxis agree to first attempt to resolve any Dispute informally for at least 30 days before initiating any court proceeding.
5.2 No Class Action. You and Xaxis agree that any Dispute shall be limited to the Dispute between Xaxis and you individually. To the full extent permitted by law no arbitration or other dispute resolution proceeding shall be joined with any other or decided on a class-action basis.
5.3 Choice of Law and Venue. Each party agrees to submit to the exclusive personal jurisdiction of the state and federal courts of New York County, New York. Construction and performance of this Agreement and the legal relations between the parties hereto shall be under the law of the State of New York without regard to its conflict of laws provisions. Each party hereby waives any claim that such venue is improper or inconvenient.
6.1 Survival. The provisions of this Agreement, other than Section 1.1 shall continue in full force and effect even after termination of this Agreement.
6.2 Severability and Assignment. If any provision of this Agreement shall be held invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it valid and enforceable, and the validity and enforceability of all other provisions of this Agreement shall not be affected thereby. User shall have no right to assign this Agreement.
6.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties. Changes made by User to this Agreement will not be effective unless set forth in a writing describing the change and agreed to and signed by both Xaxis and User. Xaxis reserves the right to change the terms of this Agreement at any time upon notice to User by e-mail or on its webpage. Such changes by Xaxis shall be effective upon notice to User and User's continued used of the Service after notice of a change in terms by Xaxis shall constitute User's acknowledgement of, and agreement to, be bound by such changes.
© 2011 Xaxis.