Terms & Conditions
TERMS OF SERVICE
Last updated: March 19, 2018
These Terms of Service (these “Terms”) govern the relationship between XY – The Findables Company (the “Company,” “us,” or “we”) and you regarding your use of the website maintained by the Company at https://xyo.network/ (the “Website”), the Ethereum smart contracts that implement the Company’s XYO token sale and the smart contracts that implement the XYO network, a trustless, decentralized, blockchain-based, system of location oracles that provides an entry point into a protocol of connected devices with which you can interact and from whom you can purchase location heuristics which transactions are implemented in Ethereum smart contracts and further including any content, functionality and services offered on or through the Website (collectively with the Website, the “Service”). When you purchase XYO tokens (XYO) you also will be subject to the terms of a separate Token Purchase Agreement, in the case of any conflict between these Terms and the terms of the Token Purchase Agreements, the provisions of the applicable Token Purchase Agreement will prevail.
IMPORTANT – PLEASE READ CAREFULLY
THESE TERMS CREATE A LEGALLY BINDING AGREEMENT WHICH GOVERNS YOUR USE OF THE WEBSITE, AND ANY SERVICE OR PRODUCT MADE AVAILABLE THROUGH THE WEBSITE, AND THEY AFFECT YOUR OBLIGATIONS AND LEGAL RIGHTS, INCLUDING, BUT NOT LIMITED TO, WAIVERS OR RIGHTS AND LIMITATIONS OF LIABILITY. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, YOU ARE PROHIBITED FROM ACCESSING OR USING THE WEBSITE OR THE PLATFORM OR BUYING XYO TOKENS. BY ACCESSING OR USING THE SERVICE OR ANY CONTENT OFFERED THROUGH THE WEBSITE AND/OR PURCHASING XYO TOKENS, YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS.
1. Right, License and Restrictions.
1.1. License Grant For Service. Subject to your agreement to, and continuing compliance with, these Terms and all other relevant Company policies, the Company grants you a non-exclusive, non-transferable, revocable limited right and license to access and use the Service through a web browser. As used in these Terms, “Other User” means another licensee or user of the Service; “All Users” means you and all Other Users.
1.2. Minimum Age Requirement. An individual must be at least 13 years of age to use the Service.
1.3. Wallets and Access. If you purchase XYO, you are responsible for maintaining the confidentiality of the keys to the digital wallet (“Wallet”) in which your XYO is stored and you agree to accept responsibility for all activities that occur with respect to the XYO in your Wallet. You acknowledge and agree that the Company is not responsible for third party access to your Wallet that results from theft or misappropriation of your Wallet keys or your XYO and the Company will not be liable for any loss or damage arising from your failure to comply with this Section 1.3.
1.4. Mobile Services: The Service may include certain services that are available via a mobile device, including the ability to browse the Service from a mobile device. To the extent that you access the Service through a mobile device, your wireless carrier’s standard charges, data rates and other fees may apply and not all mobile services may work with all carriers or devices.
1.5. Restrictions on Use of the Service: In connection with your access and use of the Service, the following restrictions apply:
(a) You accept full responsibility for any unauthorized use of your XYO;
(b) Without first obtaining the written permission of the Company, you shall not in any way use the Service if the Company has removed, suspended, or otherwise terminated your access to the Service, or on behalf of you or if the Company has notified you that you may not use the Service;
(c) You shall not use the Service to engage in any illegal conduct or for any purpose that is prohibited by these Terms;
(d) You shall not reproduce, distribute or publicly display any content you access through the Service unless such content is clearly marked as “public” and you have been given the right to view such content;
(f) You shall not do anything with any content you access through the Service that has been marked with restrictions or other instructions that is counter to such restrictions or other instructions.
1.6. International Users.
(a) The Service is controlled, operated and administered by the Company from our offices within the United States of America (the “United States”). If you access the Service from a location outside the United States, you are responsible for compliance with all local laws, whether in the United States or in your jurisdiction. You agree that you will not use the Company Content (as defined below) accessed through the Service in any country or in any manner prohibited by any applicable laws, restrictions or regulations.
(b) The technology and software underlying the Service (“Software”) available in connection with the Service and the transmission of applicable data, if any, may be subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service.
1.8. License and Account Limitations and Prohibitions.
(a) General Effects of Violations. Any use of the Service in violation of these Terms is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1.1, and may subject you to liability for violations of law. The Company may limit or restrict use of the Service by anyone who the Company reasonably believes has or will violate any applicable law when using the Service.
(b) Activity Prohibitions. You agree that you will not, under any circumstances:
(i) Engage in any act that the Company deems to be in conflict with the spirit or intent of the Service, including but not limited to circumventing or manipulating these Terms;
(ii) Use the Service in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
(iii) Modify or cause to be modified any files or content that are used to offer the Service, without the express prior written consent of the Company;
(iv) Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Service (each a “Server”) or (2) the use or enjoyment of the Service by any other person;
(v) Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;
(vi) Gain, or attempt to gain, unauthorized access to the Service, Accounts, Servers or networks connected to the Service by any means (including, but not limited to, circumventing or modifying, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Service);
(vii) Post any information that is abusive, threatening, obscene, defamatory, libelous or racially, sexually, religiously or otherwise objectionable or offensive;
(viii) Post any information that contains nudity, excessive violence or offensive subject matter or that contains a link to such content;
(ix) Harass, abuse, harm, or advocate or incite harassment, abuse or harm of another person or group of persons, including the Company employees or customer service representatives;
(x) Post, distribute or make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity or other right of any person or entity or impersonates any other person;
(xi) Transmit unauthorized communications through the Service, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;
(xii) Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms;
(xiii) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server or the Service, whether through the use of a network analyzer, packet sniffer or other device;
(xiv) Make any automated use of the Service or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure, as we determine in our sole discretion;
(xv) Bypass any robot exclusion headers or other measures we take to restrict access to the Service or use any software, technology or device to send content or messages, scrape, spider or crawl the Service, or harvest or manipulate data from, through, or relating to the Service;
(xvi) Use, facilitate, create or maintain any unauthorized connection to the Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Service or (2) any connection using programs, tools or software not expressly approved in writing by the Company;
(xvii) Copy, modify or distribute rights or content from any the Company site, including but not limited to content that contains or is protected by the Company’s copyrights or trademarks or use any method to copy or distribute the content of the Service, except as specifically allowed in these Terms;
(xviii) Solicit or attempt to solicit personal information from Other Users, other than from Users with whom you have an existing business relationship and only in connection with a bona fide business purpose for which the Service is intended;
(xix) Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image, video, or other form), identification documents or financial information through the Service; or
(xx) Upload or transmit (or attempt to upload or to transmit), without the Company’s express written permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation clear graphics interchange formats (“gifs”), 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
1.9. Suspension and Termination of Service:
(a) FAILURE TO COMPLY. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY, WITH OR WITHOUT NOTICE TO YOU, LIMIT, SUSPEND, TERMINATE OR MODIFY YOUR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF, IN OUR SOLE DISCRETION, YOU FAIL TO COMPLY WITH ANY OF THESE TERMS OR THE SERVICE IS USED BY YOU FOR ACTUAL OR SUSPECTED ILLEGAL ACTIVITY OR OTHER IMPROPER USE. THE COMPANY SHALL HAVE NO OBLIGATION TO COMPENSATE YOU FOR ANY LOSSES OR ADVERSE RESULTS THAT ARE DUE TO THE SUSPENSION, TERMINATION OR MODIFICATION OF YOUR ACCESS TO THE SERVICE.
(b) IP INFRINGEMENT.
(i) WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR SITES AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE ANY CONTENT AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT YOU ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.
(ii) REPEAT INFRINGERS. IN APPROPRIATE CIRCUMSTANCES IT IS OUR POLICY TO SUSPEND OR TERMINATE ACCESS TO THE SERVICE FOR USERS WHO ARE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
(c) Right to Cease Service. The Company reserves the right to stop offering and/or supporting the Service or part of the Service at any time, at which point the license granted hereunder to you to use the Service or a part thereof will automatically terminate. The Company shall not be required to provide refunds, benefits or other compensation to users in connection with such cessation of the Service or any part thereof.
(d) Termination of Access. Termination of your access to the Service can include disabling access to any content that you or Other Users submitted. You agree that if your access to the Service is terminated, the Company will not be obligated to preserve, provide you access to, or provide copies of any content submitted to the Service by you.
1.10. Intellectual Property Ownership in the Service. The Service, and all of its components and contents (including without limitation any computer code, template content, pre-populated content, concepts, artwork, animations, sounds, musical compositions, audio-visual effects and text contained within), and all intellectual property rights therein (the “Company Content”), are owned by the Company or its licensors, all of which is protected by United States and international patent, copyright, trademark, trade secret, and other intellectual property laws.
2. Posted Content.
2.1. Posted Content: “Posted Content” means any communications, videos, images, sounds, and all the material, data, and information that you upload, post, publish or transmit through the Service, including without limitation any comments you may make about content uploaded or transmitted by Other Users. We may provide you with templates, pre-populated communications, or other content through the Service (“Template Content”) that you may distribute, use or modify as part of using our Service to communicate with Other Users in a manner consistent with the intended use of the Service. You acknowledge that your use of any Template Content does not relieve you of any responsibilities or obligations under this Agreement. By transmitting or submitting any Posted Content while using the Service, you affirm, represent and warrant that such transmission or submission (a) is accurate and not confidential; (b) not in violation of any applicable law, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is included in the Posted Content; (c) along with the exercise of the rights by the Company granted in Section 2.2 will not result in any infringement of the intellectual property rights of any third party or violate or misappropriate any rights of publicity or privacy for any third party; and (d) is free of viruses, adware, spyware, worms or other malicious code. You further represent and warrant that you have all rights necessary to transmit Posted Content to the Company and to grant the rights in Posted Content granted to the Company under these Terms.
2.2. Licenses to Posted Content: You hereby grant the Company a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, assignable, unlimited license and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works of, manufacture, introduce into circulation, publish, distribute, sublicense, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your Posted Content as well as all modified and derivative works thereof. The Company will only exercise the rights granted in this Section 2.2 to market, provide or offer, or to facilitate the offering of, the Service. To the extent permitted by applicable laws, you hereby waive any moral rights or any of your rights of publicity or privacy you may have in any Posted Content. The Company will cease any further public display or distribution of any Posted Content if you use the features of the Service that permit you to indicate that certain of your Posted Content is no longer to be displayed or distributed to Other Users, except, however, the Company will retain the right to display or distribute any Posted Content as necessary for the Company to fulfill its legal duties or in connection with bringing or defending any legal claims or actions that may arise now or in the future.
2.3. Content Screening.
(a) Consent to Monitoring. By entering into these Terms, you hereby provide your irrevocable consent to our monitoring and recording of your use of the Service. You acknowledge and agree that you have no expectation of privacy vis a vis us or any of our service providers who provide services to us or you as part of the Service concerning the transmission of any information, including without limitation video, chat, text or voice communications.
(b) Options Regarding Posted Content. The Company may reject, refuse to post or delete any or all Posted Content for any or no reason, including, but not limited to the reason that, in the sole judgment of the Company, that the contents or posting or other use of such Posted Content in connection with the Service violates these Terms.
3. Fees and Purchase Terms. You agree to pay any and all fees and applicable taxes incurred by you in connection with using the Service. Any required fees will be specified as part of the Service. The Company reserves the right to charge fees for any parts of the Service that may have previously been offered without a fee. You agree that the Company in the future may offer premium services as part of the Service that may require fees or additional fees. The Company may revise the pricing for the goods and services offered through the Service at any time. YOU ACKNOWLEDGE THAT THE COMPANY IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED PRODUCTS AND SERVICES IF YOUR ACCESS TO THE SERVICE IS TERMINATED, WHETHER SUCH TERMINATION WAS VOLUNTARY OR INVOLUNTARY.
4. Third Party Advertising.
4.2. Links to Third Party Sites and Dealings with Advertisers. The Company may provide links on the Service to third party websites or vendors who may invite you to participate in a promotional offer in return for receiving a benefit. Any charges or obligations you incur in your dealings with these third parties are your responsibility. The Company makes no representation or warranty regarding any content, goods, or services provided by any third party even if linked from our Service, and we will not be liable for any claim relating to any third party content, goods, or services. The linked sites are not under the control of the Company and may collect data or solicit personal information from you. The Company is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by the Company of these linked sites.
5. Copyright Notices; Complaints. It is the Company’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (the “DMCA”). For more information, please see the Company’s “Copyright (DMCA) Policy” to review our DMCA procedures. You represent and warrant to the Company that you have read such Copyright Policy and it is reasonable and acceptable to you. Your acceptance of these Terms is also your consent to the copyright practices in our Copyright DMCA Policy. The Company reserves the right to terminate without notice any user’s access to the Service if that user is determined by the Company to be a “repeat infringer.” In addition, the Company accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
6. Updates to the Service. You understand that the Service undergoes frequent changes. The Company may require that you accept updates to the Service in order to continue using the Service. You acknowledge and agree that the Company may update the Service without notifying you.
7. Disclaimer; Limitations; Waivers on Liability; Indemnification.
7.1. Disclaimer of Warranties.
(a) SERVICE PROVIDED “AS IS”. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD THE SHORTER OF THIRTY (30) CALENDAR DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED).
(b) NO WARRANTY OF ERROR-FREE OPERATION. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, THIRD-PARTY SERVICE PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “THE COMPANY PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
(c) NO WARRANTY REGARDING ACCESS TO SERVICE AND CONTENT. THE COMPANY DOES NOT WARRANT THAT ALL CONTENT OR INFORMATION POSTED BY A USER WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE. THE COMPANY DOES NOT WARRANT THAT THE SERVICE, USER INFORMATION OR ANY INFORMATION POSTED BY A USER WILL BE KEPT FROM ANY PARTICULAR INDIVIDUAL OR ENTITY WHO EITHER HACKS OR ENGAGES IN UNAUTHORIZED ACCESS TO SUCH CONTENT OR INFORMATION OR IS MISTAKENLY GRANTED ACCESS BY THE COMPANY OR THROUGH THE SERVICE.
7.2. Limitations; Waivers of Liability.
(a) DISCLAIMER OF INDIRECT DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE COMPANY PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
(b) NOT RESPONSIBLE FOR THIRD PARTY CONDUCT. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER ACCOUNT HOLDERS OR USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
(c) MONETARY LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID THE COMPANY IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
(d) FAILURE TO PAY. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID THE COMPANY ANY AMOUNTS IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH THE COMPANY IS TO STOP USING THE SERVICE.
(e) APPLICABILITY OF DISCLAIMER; USE IN NEW JERSEY. THE EXCLUSIONS OF CERTAIN WARRANTIES AND THE LIMITATIONS AND EXCLUSIONS OF LIABILITY SET FORTH HEREIN SHALL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN CONNECTION WITH YOUR USE OF THE SERVICE WHILE LOCATED IN NEW JERSEY, the company MAY be liable for any damages arising out of your use of the service, IF, and only to the extent, such damages are the result of the company’s negligent or reckless acts or omissions; provided, however, that the company shall not be liable for consequential, indirect or punitive damages.
7.3. Indemnification. You agree to defend, indemnify, save, and hold the Company Parties harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms or any breach of the representations, warranties and covenants made by you herein. The Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Company and you agree to cooperate with the Company’s defense of these claims. The Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of the Service or your access thereto.
8. BINDING ARBITRATION AND CLASS ACTION WAIVER.
PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE IN DISCOVERY; AND (4) APPEAL RIGHTS WILL BE LIMITED.
8.1. General. If a dispute arises between you and us, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and the Company agree that you and we will resolve any claim or controversy at law or equity that arises out of these Terms, the Service, or our products or services (a “Claim”) in accordance with one of the subsections below.
8.2. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any person who uses your Account, and us, our affiliates, and/or agents, if it relates to your Account, your use of the Service, or to these Terms, except as noted hereafter.
8.3. Either party may assert an individual case in small claims court or your state’s equivalent court. Any disputes relating to the enforcement, protection, or validity of the intellectual property rights of either party shall not be subject to arbitration. Nothing in this Section shall limit either party from seeking injunctive or other exigent relief from a court of law.
8.4. Notwithstanding any other language in this Section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this Section of these Terms. However, any dispute or argument that concerns the validity or enforceability of these Terms as a whole is for the arbitrator, not a court, to decide. Further, you and we may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
8.5. YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY OTHER USER OR PERSON NOT ON YOUR ACCOUNT.
8.6. The party who wants to arbitrate must notify the other party in writing, if by the Company, then to the most recent e-mail address which you have provided the Company and if by you, then to the Company at firstname.lastname@example.org. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit.
8.7. The arbitration administrator shall be JAMS and the arbitration shall be conducted under the Streamlined Arbitration Rules and Procedures of JAMS (“JAMS Rules”) that are in effect at the time the arbitration is initiated. The JAMS Rules can be accessed at http://www.jamsadr.com/rules-streamlined-arbitration/. In the event of a conflict between the terms set forth in this Section of the Agreement and the JAMS Rules, the terms in this Section of the Agreement will control.
8.8. The arbitrator must apply the same law and legal principles, consistent with the Federal Arbitration Act (“FAA”), that would apply in court, but may use different procedural rules.
8.9. We will pay all the fees that the administrator or arbitrator charges.
8.10. Because the products, software and/or service provided to you by the Company concern interstate commerce, the FAA governs the arbitrability of all disputes. California law shall apply to the extent state law is relevant under the FAA. The arbitrator’s decision will be final and binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged under the provisions of the FAA.
8.11. Except for claims subject to arbitration as provided for in this section (and claims proceeding in any small claims court), all other disputes arising out of or related to your Account, your use of the Website, or to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in San Diego, California, and you agree to submit to the personal jurisdiction and venue of such courts.
8.12. Severability. If any portion of this Section 8 is found illegal or unenforceable (except any portion of Section 8.3), that portion shall be severed and the remainder of this Section 8 shall be given full force and effect. If Section 8.3 is found to be illegal or unenforceable, then neither you nor we will elect to arbitrate any claim falling within that portion of Section 8.3 found to be illegal or unenforceable and such claim shall be exclusively decided by a court of competent jurisdiction consistent with Section 8.11.
8.13. Survival. This Section 8 shall survive any termination of the Terms.
9. General Provisions.
9.3. Assignment. The Company may assign any of its rights or delegate any of its obligations under these Terms, in whole or in part, to any person or entity at any time without your consent. You may not assign or delegate any rights or obligations under the Terms without the prior written consent of the Company; any purported assignment or delegation in violation of this Section 9.3 is void.
9.4. Supplemental Policies. The Company may publish additional policies related to specific services such as forums, contests, or loyalty programs. Your use, if any, of such services is subject to such specific policies and these Terms.
XY – The Findables Company
1133 Columbia St., Suite 205
San Diego, CA 92101
Attn: Terms Administrator
9.8. Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms to the Company are of a unique and irreplaceable nature, the loss of which shall irreparably harm the Company and which cannot be replaced by monetary damages alone, so that the Company shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 7.2.
9.9. Force Majeure. We shall not be liable for any delay or failure to perform resulting from unforeseen circumstances or causes outside our reasonable control, including without limitation acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials.