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Terms of Service

Last updated: September 28, 2018

1. INTRODUCTION AND LEGAL AGREEMENT

These Terms of Use apply to the Xtendly LLC online and mobile sites on which we have posted these Terms of Use (collectively, the “Sites”). The Sites are operated by Xtendly LLC, along with our affiliate, Xtendly Philippines Inc., and subsidiary sites including prosperna.com (collectively, “we,” “our,” “us”). You agree that by clicking “Sign Up” “Get Started”, or similar, registering, accessing or using our services, or any content or information provided as part of these services, collectively, “Services”), you are entering into a legally binding agreement (even if you are using our Services on behalf of a company).

Important: Prosperna.com is built by the friendly folks at Xtendly LLC and Xtendly Philippines Inc., for credit card payments, you will receive a charge on your credit card for your Services, note that this will be from Xtendly LLC; for check payments, checks are made payable to Xtendly Philippines Inc.

This “Agreement” includes this Terms of Service agreement, together with any related Order Form and our Privacy Policy, and other terms that will be displayed to you at the time you first use certain features or services, as may be amended by us from time to time and supercedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter, including (i) any non-disclosure or confidentiality agreement between Customer and Xtendly LLC and Xtendly Philippines Inc. and (ii) any trial agreement entered into between Customer and Xtendly LLC and Xtendly Philippines Inc. for access to the Service. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order or other order documentation submitted by Customer (excluding Order Forms) will be incorporated into or form any part of this Terms of Service, and all such terms or conditions will be null and void. If you do not agree to this Agreement, do NOT click “Sign Up”, “Get Started” (or similar) and do not access or otherwise use any of our Services. Registered users of our Services are herein referred to as “Members” with a “Member Account” and unregistered users are “Visitors”. This Agreement applies to both.

2. MEMBER ACCOUNT AND MEMBER WEBSITE

Your Member Account may only be used by one (1) person – a single login shared by multiple people is not permitted. You may create separate logins for as many people as permitted under the applicable Subscription. Under your Member Account settings, and/or your Member website (“Member Website”) you may perform any actions available to you, make changes to your Member Account, Member Account settings, or Member Website and accept any legal terms available therein, make various representations and warranties and more and all such activities will be deemed to have occurred on your behalf and in your name.

Therefore, we strongly encourage you to keep the log-in credentials of your Member Account confidential – as you will be solely and fully responsible for all activities that occur under your Member Account (including for any representations, warranties and undertakings made therein), whether or not specifically authorized by you, and for any damages, expenses or losses that may result from such activities.

You must provide accurate and complete information when registering your Member Account and using the Services, to which you are the sole and exclusive rightsholder. We strongly encourage you to provide your own (or your company’s) contact and billing details, including your valid email address, as we may use it to identify and determine the actual and true owner of the Member Account and/or Member Content (as defined below) submitted to us.

We reserve the right to determine and/or grant ownership to a Member Account based on our reasonable judgment, whether or not an independent investigation has been conducted by us. However, if we cannot make such determination (as we may deem in our sole discretion), we reserve the right to avoid doing so, without liability to you or to any other party. Among others, we may consider the principles set forth below.

Please carefully review these principles and consider adapting your practices accordingly, to ensure that what you believe to be “your” Member Account and/or Member Website remains as such:

(a) The owner of a Member Account, Member Website and/or Member Content created and/or uploaded to the Services, may be considered to be the person or entity who has access to the email address then listed in our records for such Member Account under which such Member Website or Member Content has been created.

(b) If any Paid Services (as defined below) were procured via the Member Account, the owner of such Member Account, or any Member Website and/or Member Content created thereunder, may be considered to be the person or entity whose billing details were used to purchase such Paid Services. Notwithstanding the foregoing, if a Member Website was connected to an external domain name (either imported or purchased as part of certain Paid Services, as defined below), and such domain’s registration information is publicly available via the WHOIS database provided on the www.whois.net website, the owner of such Member Website may be determined to be the person or entity registered as the owner of such domain thereunder. In the event that both an individual and an organization are registered as the owner of such domain, we will consider the organization as the actual owner of the domain, and therefore as the owner of the Member Website connected to such domain.

All activities that occur under your Member Account or Member Website are your responsibility.

3. MEMBER ACCOUNT INFORMATION

The account information you provide us must be your own (or your company’s), and be accurate and complete. We will determine the ownership of all Member Accounts. You represent and warrant that:

(a) You are at least eighteen (18) years of age, or of the legal age of majority in your jurisdiction, and possess the legal authority, right and freedom to enter into this Agreement and to form a binding agreement, for yourself or on behalf of the person or entity committed by you to the Agreement;

(b) You are not a resident of (or will use the Services in) a country that the U.S. government has embargoed for use of the Services, nor are you named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations;

(c) Your country of residence and/or your company’s country of incorporation is the same as the country specified in the contact and/or billing address you provide us;

(d) You understand that we do not provide any legal advice or any recommendation with respect to any laws or requirements applicable to your use or any of your end users, or your compliance therewith;

4. CONTENT OWNERSHIP, RESPONSIBILITY AND REMOVAL

(a) You own all rights in and to any content uploaded by you (“Member Content”), including any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works and any other materials (“Content”), or otherwise have (and will continue to have) the full power, title, licenses, consents and authority, in and to the Member Content, as necessary to legally use, publish, transfer or license any and all rights and interests in and to such Member Content;

(b) The Member Content is (and will continue to be) true, current, accurate, non-infringing upon any third party rights, and in no way unlawful for you to possess, post, transmit or display in the country in which you or your Member Website’s visitors and users reside, or for us and/or your visitors and users to use or possess in connection with the Services;

(c) You have obtained all consents and permissions required under all applicable laws, regarding the posting, transmission and publication of any personal information and/or image or likeness of any person, entity or property which is part of the Member Content, and you will adhere to all laws applicable thereto.

(d) Removal of User Content. You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

5. YOUR OBLIGATIONS

In order to participate on the Sites and access the Services, you agree that you will:

(a) Fully comply with all applicable laws and any other contractual terms which govern your use of the Services (and any related interaction or transaction), including those specific laws applicable to you or your users and visitors in any of your geographical locations;

(b) Be solely responsible and liable with respect to any of the uses of the Services which occur under your Member Account and/or Member Website(s), and for any of your Member Content (including for any consequences of using or publishing such Member Content on or with respect to the Services);

(c) Regularly and independently save and backup any of your Member Content and the information that is being processed by you regarding your Member Website, including with respect to your visitors and users, and any applications and/or Third Party Services used by you;

(d) Receive from time to time promotional messages and materials from us or our partners, by mail, email or any other contact form you may provide us with (including your phone number for calls or text messages). If you wish not to receive such promotional materials or notices please just notify us at any time;

(e) Allow us to use in perpetuity, worldwide, royalty-free, non-exclusive, perpetual, irrevocable, sublicensable, transferable license and free of charge, to use, modify, reproduce, distribute, display, publish and perform all Trademarks owned by or licensed to Customer, any version of your Member Website (or any part thereof) for any of our marketing and promotional activities, online and/or offline, and modify it as reasonably required for such purposes, and you waive any claims against us or anyone on our behalf relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide that you may have in or to your Member Website with respect to such limited permitted uses; upon Customer’s written request, Xtendly LLC and Xtendly Philippines Inc. will promptly discontinue its use of Customer’s Trademarks in connection with any Marketing Activities.

Further, you acknowledge and agree that we, in our sole discretion, shall determine the means, manner, and method for performing the Services, including those regarding the hosting, transmission, publication and/or display of any Member Websites and/or Content (including the inclusion and presentation of any advertisements or other commercial content with respect thereto).

In addition, you undertake and agree NOT to:

(f) Copy, modify, create derivative works of, download, adapt, reverse engineer, emulate, migrate to another service, translate, compile, decompile or disassemble any of the Sites, the Services (or any part thereof), any Content offered by us or Third Party Services for use and display within Member Websites (“Licensed Content”) and/or any part thereof in any way, or publicly display, perform, transmit or distribute any of the foregoing without our prior written and specific consent and/or as expressly permitted under this Agreement;

(g) Submit, transmit or display any Member Content, or use Licensed Content in a context, which may be deemed as defamatory, libelous, obscene, harassing, threatening, incendiary, abusive, racist, offensive, deceptive or fraudulent, encouraging criminal or harmful conduct, or which otherwise violates the rights of us or any third party (including any intellectual property rights, privacy rights, contractual or fiduciary rights), or otherwise shows any person, entity or brand in a bad or disparaging light, without their prior explicit approval;

(h) Publish and/or make any use of the Services or Licensed Content on any website, media, network or system other than those provided by us, and/or frame, “deep link”, “page scrape”, mirror and/or create a browser or border environment around any of the Services, Licensed Content and/or Member Website (or any part thereof), except as expressly permitted by us, in advance and in writing;

(i) Use any “robot”, “spider” or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Services (or its data), or in any way reproduce or circumvent the navigational structure or presentation of any of the Services to obtain or attempt to obtain any materials, documents, services or information through any means not purposely made available through the Services;

(j) Act in a manner which might be perceived as damaging to our reputation and goodwill or which may bring us into disrepute or harm;

(k) Purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use our name or our Marks and/or variations and misspellings thereof;

(l) Impersonate any person or entity or provide false information on the Services and/or Member Website, whether directly or indirectly, or otherwise perform any manipulation in order to disguise your identity or the origin of any message or transmittal you send to us and/or any of our other Visitors or Membe

(m) Falsely state or otherwise misrepresent your affiliation with any person or entity, or falsely express or imply that we or any third party endorses you, your Member Website, your business, your Member Products, or any statement you make;

(n) Reverse look-up, trace, or seek to trace another Member of Services, or otherwise interfere with or violate any other Member’s right to privacy or other rights, or harvest or collect personally identifiable information about visitors or users of the Services and/or Member Website without their express and informed consent;

(o) Disable, circumvent, bypass or otherwise avoid any measures used to prevent or restrict access to the Services, Member Website, the account of another Member(s), or any other systems or networks connected to the Services, by hacking, password mining, or other illegitimate or prohibited means;

(p) Probe, scan, or test the vulnerability of the Services or any network connected to the Services;

(q) Upload to the Services and/or Member Website or otherwise use them to design, develop, distribute and/or otherwise transmit or execute, any virus, worm, Trojan Horse, time bomb, web bug, spyware, malware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component;

(r) Take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or our systems or networks connected to the Services, or otherwise interfere with or disrupt the operation of any of the Services, or the servers or networks that host them or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks;

(s) Use any of the Services and/or Member Website in connection with any form of spam, unsolicited mail, fraud, scam, phishing, “chain letters”, “pyramid schemes” or similar conduct, or otherwise engage in unethical marketing or advertising;

(t) Sell, license, or exploit for any commercial purposes any use of or access to the Licensed Content and/or Services, except as expressly permitted by this Agreement;

(u) Remove or alter any copyright notices, watermarks, restrictions and signs indicating proprietary rights of any of our licensors, including copyright mark [©] or trademarks [® or ™] contained in or accompanying the Services and/or Licensed Content; or

(v) Violate, attempt to violate, or otherwise fail to comply with this Agreement or any laws or requirements applicable to your use of the Services.

You acknowledge and agree that your failure to abide by any of the foregoing or any misrepresentation made by you herein may result in the immediate termination of your Member Account and/or any Services provided to you with or without further notice to you, and without any refund of amounts paid on account of any such Services.

6. SUGGESTIONS, COMMENTS AND FEEDBACK

If you provide us with any suggestions, comments or other feedback relating to the Services (whether existing, suggested or contemplated), which is or may be subject to any Intellectual Property rights (“Feedback”), such Feedback shall be exclusively owned by us. By providing such Feedback to us, you (1) represent and warrant that such Feedback is accurate, complete, and does not infringe on any third party rights; (2) irrevocably assign to us any right, title and interest you may have in such Feedback, (3) explicitly and irrevocably waive any and all claims relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide in or to such Feedback.

7. PRIVACY POLICY

Certain parts of the Services (including certain Third Party Services available therein, as further explained below) require or involve the submission, collection and/or use of certain personally identifying or identifiable information. In particular and as a part of accessing or using the Services, we and such Third Party Services may collect, access and use certain data pertaining to Members and your visitors and users, including the activities or navigation undertaken by Members and such visitors and users through the Services and/or Member Websites. We encourage you to read our Privacy Policy and each such Third Party Services’ relevant policies on a regular basis, for a description of such data collection and use practices.

8. SUBSCRIPTION

Xtendly LLC and Xtendly Philippines Inc. may make certain limited portions of the Services available for free. Xtendly LLC and Xtendly Philippines Inc. requires payment of a fee for use of additional Services (or certain portions thereof) that are not available for free on a subscription basis (“Subscription”). Xtendly LLC and Xtendly Philippines Inc. may also provide portions of the additional Services that are made available to those who purchase Subscriptions without payment for a trial period, but your ability to access those Services will be terminated at the end of such trial period. At any time during the trial and thereafter, you may purchase a Subscription.

(a) General. When you purchase a Subscription (each, a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your banking and checking account information, credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information).

(b) Subscriptions. If you purchase a Subscription, you will be charged the applicable Subscription fee (which may be on a monthly or annual basis, depending on the Subscription), plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription and each period thereafter (such period will depend on the Subscription), at the then-current Subscription Fee. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each applicable period at the beginning of the next applicable period of your Subscription during the term, using the Payment Information you have provided until you cancel your Subscription. By agreeing to this Agreement and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Xtendly LLC and Xtendly Philippines Inc. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with this Agreement. Prices for the Services, including but not limited to monthly Subscription fees to the Service, are subject to change upon 30 days’ notice from us. Such notice may be provided at any time.

(c) Modifying Subscriptions. Upon upgrading or downgrading in plan level, you will be credited pro rata for the time remaining in the current billing cycle, however, you will not be refunded for any Services already rendered during the then-current subscription period. Downgrading your Subscription plan may cause the loss of features, or capacity of your Account. Xtendly LLC and Xtendly Philippines Inc. does not accept any liability for such loss.

(d) Cancelling Subscription. YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR ONE-TIME PAYMENT OR SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we’ll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. EXCEPT AS SET FORTH ABOVE WITH RESPECT TO YOUR INITIAL SUBSCRIPTION PURCHASE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you are required to send an email to [email protected] or submit a ticket at [email protected]. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current subscription period and will then terminate without further charges; however, you will not receive a refund for any unused Services.

9. LOSS OF DATA, CONTENT AND CAPACITY UPON CANCELLATION

If your Member Account or any Services or Third Party Services related to your Member Account are cancelled (whether at your request or at our discretion), it may cause or result in the loss of certain content, features, or capacity of your Member Account, including any Member Content, visitor or user data or other usage data retained therein, and including any domain name reservation or registration that was included in such Services (“Capacity Loss”). We shall not be liable in any way for such Capacity Loss, or for saving a backup of your Member Account, Member Content or visitor or user data. Please also note that additional Fees may apply to re-activation of a Member Account and/or any Services following their cancellation, as determined by us in our sole discretion.

10. THIRD PARTY SERVICES

The Services may enable you to engage and procure certain third party services and tools for enhancing your Member Website and your overall user experience, including domain registrars from which you may purchase a domain name for your Member Website, third party applications and widgets offered via the Site(s), third party Licensed Content, media distribution services, third party designers who may assist you with your Member Website, etc. (collectively, “Third Party Services”).

You acknowledge and agree that regardless of the manner in which such Third Party Services may be offered to you (bundled with certain Services, offered separately by us or persons certified or authorized by us, or otherwise offered anywhere on the Services), we merely act as an intermediary platform between you and such Third Party Services, and do not in any way endorse any such Third Party Services, or shall be in any way responsible or liable with respect thereto. We will not be a party to, or in any way be responsible for monitoring, any interaction or transaction between you and any Third Party Services.

Any and all use of such Third Party Services shall be done solely at your own risk and responsibility, and may be subject to such legal terms which govern such Third Party Services, which you are encouraged to review before engaging with them.

While we hope to avoid such instances, we may, at any time and at our sole discretion, suspend, disable access to or remove from your Member Account, Member Website(s) and/or the Services, any Third Party Services whether or not incorporated with or made part of your Member Account and/or Member Website(s) at such time – without any liability to you or to any of your visitors or users.

11. COPYRIGHTS AND DMCA

We respect the intellectual property rights of others. We act in accordance with our interpretation of the Digital Millennium Copyright Act (“DMCA”). If you believe that your work has been copied or was otherwise used in a way that constitutes copyright infringement, you may notify us of such infringement by providing the following information in writing to our designated Copyright Agent: (1) the contact details of the person authorized to act on behalf of the owner of the copyright; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the material that you claim to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information sufficient to permit us to locate the material (including URL address); (4) 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; and (5) a statement that the information in the notification is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed.

Our Copyright Agent can be reached at the following address:

Attn: Copyright Agent
Telephone Number: 1-844-983-6359
E-mail: [email protected]

In the event that we receive notice regarding a copyright infringement related to your Member Account or Member Website, we may cancel your Member Account, take your Member Website down or remove any Content in our sole discretion, with or without prior notice to you. In such case, you may file a proper counter-notice in accordance with Section 512 of the DMCA, in which you must include: (1) your full name, address, phone number and physical or electronic signature; (2) identification of the material and its location before removal; (3) a statement under penalty of perjury that the material was removed by mistake or misidentification; (4) your consent to an appropriate judicial body; and (5) any other information required under the relevant provisions of the DMCA. Any notices filed pursuant to this Section may be deemed accepted, applicable and compliant with the DMCA, or not, at our sole reasonable discretion. We reserve the right to notify the person or entity providing the infringement notice of such counter-notice and provide any details included therein.

When using the Services, you may be exposed to Member Websites, Member Content or Third Party Services from a variety of sources, which may be inaccurate, objectionable or illegal. You hereby waive any legal or equitable rights or remedies you have or may have against us with respect thereto. If you believe a Member or any Third Party Services acted inappropriately or otherwise misused any of the Services, please immediately report such Member and/or Third Party Service to us via our contact information below. You agree that your report shall not impose any responsibility or liability upon us, and that we may consider such report and act upon it, refrain from taking any such action or require additional information or documents before doing so, at our sole discretion.

12. DISCLAIMER OF WARRANTIES

We provide the Sites and the Services on an “As Is”, “with all faults” and “As Available” basis, without any warranties of any kind, including any implied warranties or conditions of merchantability, fitness for a particular purpose, workmanlike effort, non-infringement, or any other warranty all to the fullest extent permitted by law. We specifically do not represent or warrant that the Sites or Services (or any part, feature or Content thereof) are complete, accurate, of any certain quality, reliable or secure in any way, suitable for or compatible with any of your (or your visitors or users) contemplated activities, devices, operating systems, browsers, software or tools (or that they will remain as such at any time), or comply with any laws applicable to you or your visitors or users (including in any jurisdiction in which you operate), or that their operation will be free of any viruses, bugs or other harmful components or program limitations. Moreover, we do not endorse any entity, product or service (including any Third Party Services) mentioned on or made available via the Services so please be sure to verify those before using or otherwise engaging them.

We may, at our sole discretion (however we shall have no obligation to do so), screen, monitor and/or edit any Member Website and/or Member Content, at any time and for any reason, with or without notice.

Notwithstanding anything to the contrary in the foregoing, in no circumstances may we be considered as a “publisher” of any Member Content, and we do not in any way endorse any Member Content or assume any liability for any Member Content uploaded, posted, published and/or made available by any Member or any other party on and/or through the Services, for any use by any party, or for any loss, deletion or damage thereto or thereof or any loss, damage, cost or expense that you or others may suffer or incur as a result of or in connection with publishing, accessing and/or relying on any Member Content. Furthermore, we shall not be liable for any mistakes, defamation, libel, falsehoods, obscenity, pornography, incitement and/or any other unlawful and/or infringing Member Content you or any other party may encounter.

You acknowledge that there are risks in using the Services and/or connecting and/or dealing with any Third Party Services through or in connection with Services, and that we cannot and do not guarantee any specific outcomes from such use and/or interactions, and you hereby assume all such risks, liabilities and/or harm of any kind arising in connection with and/or resulting from such interactions. Such risks may include, among others, misrepresentation of information about and/or by Third Party Services and/or Licensed Content, breach of warranty and/or contract, violation of rights, and any consequent claims.

We do not recommend the use of the Services for hosting of personal content and shall not bear any security or integrity obligations or risks regarding breach or damage to any such content.

13. LIMITATION OF LIABILITY

To the fullest extent permitted by law in each applicable jurisdiction, we, our officers, directors, shareholders, employees, affiliates and/or agents shall not be liable to you for any direct, indirect, incidental, special, punitive, exemplary or consequential damages whatsoever, including any damages resulting from (1) errors, mistakes, or inaccuracies of or in any content; (2) any personal injury or property damage related to your use of the Services; (3) any unauthorized access to or use of our servers and/or any personal information and/or other information stored therein; (4) any interruption or cessation of transmission to or from the Services; (5) the use or display of any Content or Member Content posted, emailed, transmitted, or otherwise made available via the Services; and/or (6) events beyond our reasonable control, including any internet failures, equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, earthquakes, explosions, acts of God, war, terrorism, intergalactic struggles, governmental actions, orders of courts, agencies or tribunals or non-performance of third parties.

You acknowledge and agree that these limitations of liability are agreed allocations of risk constituting in part the consideration for our services to you, and such limitations will apply even if we gave been advised of the possibility of such liabilities.

14. INDEMNITY

You agree to defend, indemnify and hold harmless us, our officers, directors, shareholders, employees, affiliates and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt and expenses (including attorneys’ fees) arising from: (1) your violation of any term of this Agreement or any other terms applicable to your use of or access to the Site(s) or Services; (2) your violation of any third party right, including any copyright, property, or privacy right, resulting from your Member Website or Member Content and/or your use of the Services; and/or (3) any other type of claim that your Member Website and/or Member Content caused damage to a third party.

15. GOVERNING LAW AND FORUM CHOICE

These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 16 “Dispute Resolution for Consumers,” the exclusive jurisdiction for all Disputes (defined below) that you and Xtendly LLC and Xtendly Philippines Inc. are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and Xtendly LLC and Xtendly Philippines Inc. each waive any objection to jurisdiction and venue in such courts.

16. DISPUTE RESOLUTION FOR CONSUMERS

The parties shall use their best efforts to engage directly to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration.
If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution begins, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including their formation, performance and breach), the parties’ relationship with each other and/or Your use of the Service shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions.
The arbitrator shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
Binding arbitration shall take place in the State of California. You agree to submit to the personal jurisdiction of any federal or state court in California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND XTENDLY LLC AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

17. GENERAL

(a) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Xtendly LLC and Xtendly Philippines Inc. and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Xtendly LLC and Xtendly Philippines Inc. and you regarding the Services and Content. If we execute a written Order Form with you for the provision of Services (“Order Form”), the terms of the Order Form will take precedence over any terms of the Terms that conflict with the terms of the Order Form. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Xtendly LLC and Xtendly Philippines Inc.’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Xtendly LLC and Xtendly Philippines Inc. may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

(b) Notices. Any notices or other communications provided by Xtendly LLC and Xtendly Philippines Inc. under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

(c) Waiver of Rights. Xtendly LLC and Xtendly Philippines Inc.’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Xtendly LLC and Xtendly Philippines Inc. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

(d) Headings: Any heading, caption or section title contained herein, is provided only for convenience, and in no way defines or explains any section or provision hereof, or legally binds any of us in any way.

(e) Choice of Language: The terms of this Agreement were written in English. If a translated (non-English) version of this Agreement conflicts in any way with their English version, the provisions of the English version shall prevail.

(f) Relationship: This Agreement, your access to the Site(s), and your use of the Services, do not, and shall not be construed to create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between us and you.

(g) Assignment: We may assign our rights and/or obligations hereunder and/or transfer ownership rights and title in the Services and/or Licensed Content to a third party without your consent or prior notice to you. You may not assign or transfer any of your rights and obligations hereunder without the prior written consent of us. Any attempted or actual assignment thereof without our prior explicit and written consent will be null and void. In any event, an assignment or transfer pursuant to this Section shall not in itself grant either us or you the right to cancel any Services or Third Party Services then in effect.

CONTACT US

If you have any questions about these Terms or the Services, get in touch with our Customer Service by emailing us at [email protected] or by phone at 1-844-983-6359 or +63917-659-1948.