EnFr

Terms of Use

XENDERA Terms of Use

Last Updated Date: 13th of March, 2017

Please read this term of use agreement (the “terms of use”) carefully. By accessing or using this website or any other websites of Xendera inc (“Xendera” “we” or “us” or “our”) with links to this agreement (collectively, the “website”) in any way, including using the services and resources available or enabled via the website (each a “service” and collectively, the “services”), clicking on the “i accept” button, completing the registration process, and/or merely browsing the website, or downloading Xendera’s mobile application (the “application”), you represent that (1) you have read, understand, and agree to be bound by the terms of use, (2) you are of legal age to form a binding contract with Xendera, and (3) you have the authority to enter into the terms of use.  The term “you” refers to the individual, as applicable, identified as the user when you registered on the website.  If you do not agree to be bound by the terms of use, you may not access or use this website, the application, or the services.

The terms of use include a class action waiver and a waiver of jury trials, and require binding arbitration on an individual basis to resolve disputes.

The terms of use limit the remedies that may be available to you in the event of a dispute.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service.  If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.  The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”

Please note that the terms are subject to change by Xendera in its sole discretion at any time.  When changes are made, Xendera will make a new copy of the Terms of Use available at the Website and within the Application and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website or within the Application.  We will also update the “Last Updated” date at the top of the Terms of Use.  If we make any material changes, and you have registered with us to create an Account (as defined in Section 4.1 below) to use the Services, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms.  Any changes to the Terms will be effective immediately for new Users of the Website, the Application and/or Services and will be effective thirty (30) days after posting of notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting of notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 4.1 below). Xendera may require you to provide consent to the updated Terms in a specified manner before further use of the Website, the Application and/or the Services is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Application and/or the Services.  Otherwise, your continued use of the Website, the Application and/or Services constitutes your acceptance of such change(s).  Please regularly check the website to view the then-current terms.

  1. About the Service. XENDERA provides a platform where you can convert your workout sessions into vouchers that you can use towards products. XENDERA has agreements with providers of fitness data devices (each, a “Fitness Data Device”) and related applications (“Fitness Applications”) and a select number of companies (“Brand Sponsors”) that offer vouchers (“Brand Sponsor Vouchers”) that can be used by you to purchase goods and services that Brand Sponsor offers for sale to you through the Service (“Brand Sponsor Products”) (collectively, the “Brand Sponsor Program”). When you sync your Fitness Data Device with the Service, we convert your workouts (“Fitness Data”) according the minutes of workout, calories burned, distance covered, etc. Each Brans Sponsor will have defined a goal to reach for each sport and for each Brand Sponsor Program. When the goals are reached, you can access to the Brand Sponsor Voucher that are offered by that Brand Sponsor through the Service.
  2. Terms of Sale. By obtaining Brand Sponsor Vouchers and using Brand Sponsor Vouchers to purchase Brand Sponsor Products via the Service, you agree to the following:
    • General. Descriptions of the Brand Sponsor Products advertised on the Service are provided by the Brand Sponsor. XENDERA is not responsible for any performance or quality claims associated with each Brand Sponsor Program and/or the Brand Sponsor Products. Pricing relating to Brand Sponsor Products offered through the Service may change at any time in Brand Sponsor’s discretion without notice. Brand Sponsor may make prospective changes to Brand Sponsor’s Changing Rates through the XENDERA Service at any time.
    • Voucher Redemption.
      • Each Brand Sponsor Voucher is redeemable only for the Brand Sponsor Products offered by, or facilitated through, the Brand Sponsor identified on the Brand Sponsor The Brand Sponsor is solely responsible for processing all purchase transactions with Users, and XENDERA is not a party to such transactions. Brand Sponsor is fully and solely responsible for the quality of all Brand Sponsor Products and for any and all User claims arising from or relating to injuries, illnesses, damages, claims, liabilities and costs caused by Brand Sponsor Products.
      • By using or attempting to use any Brand Sponsor Voucher, you agree specifically to the terms on the Brand Sponsor Voucher and any additional deal-specific terms advertised in connection with the Brand Sponsor Voucher at the time of purchase (the “fine print” regardless of how labeled) and these Terms. These Terms apply to all Brand Sponsor Vouchers that Brand Sponsors make available through the Service, unless a particular Brand Sponsor Voucher’s fine print states otherwise, and except as otherwise required by law. In the event of a conflict between these Terms and the fine print on a Brand Sponsor Voucher, the fine print on the Brand Sponsor Voucher will control with respect to that Brand Sponsor Voucher.  Any attempt to redeem a Brand Sponsor Voucher in violation of these Terms will render the Brand Sponsor Voucher void.
      • The Brand Sponsor is the sole issuer of the Brand Sponsor Voucher. Brand Sponsor Vouchers are not redeemable for cash, unless required by law. Unauthorized or unlawful reproduction, resale, modification or trade of Brand Sponsor Vouchers is prohibited.
  1. Use of Our Properties. The Application, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined below) (collectively, “Our Properties”) are protected by copyright laws throughout the world.  Subject to the Terms, XENDERA grants you a limited license to reproduce portions of Our Properties for the sole purpose of using the Services for your personal purposes. Unless otherwise specified by XENDERA in a separate license, your right to use Our Properties is subject to the Terms.
    • Application License. Subject to your compliance with the Terms, XENDERA grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile phone that you own or control and to run such copy of the Application solely for your own personal purposes.  Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
    • Updates. You understand that Our Properties are evolving.  As a result, XENDERA may require you to accept updates to Our Properties that you have installed on your mobile phone.  You acknowledge and agree that XENDERA may update Our Properties with or without notifying you.  You may need to update third-party software from time to time in order to receive the Services or use Our Properties.
    • Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Our Properties or any portion of Our Properties; (b) you shall not use any metatags or other “hidden text” using the Company’s name or trademarks; (c) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Our Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (d) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from Our Properties ; (e) you shall not access Our Properties in order to build a similar or competitive website, application or service; (f) except as expressly stated herein, no part of Our Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Our Properties. Any future release, update or other addition to Our Properties shall be subject to the Terms.  XENDERA, its suppliers and service providers reserve all rights not granted in the Terms.  Any unauthorized use of Our Properties terminates the licenses granted by XENDERA pursuant to the Terms.

 

    • Registering your Account. In order to access certain features of Our Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account through our Application (“Account”) or has a valid account on the social networking service (“SNS”) through which the User has connected to the Services (each such account, a “Third-Party Account”).
    • Access through an SNS. If you access the Services through an SNS as part of the functionality of the Website, the Application and/or the Services, you may link your Account with Third-Party Accounts, by allowing XENDERA to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account.  You represent that you are entitled to disclose your Third-Party Account login information to XENDERA and/or grant XENDERA access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating XENDERA to pay any fees or making XENDERA subject to any usage limitations imposed by such third-party service providers.    You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Application.  PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS.
    • Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You represent that you are (1) at least eighteen (18) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using Our Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account.  You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Our Properties by minors.  You may not share your Account or password with anyone, and you agree to notify XENDERA immediately of any unauthorized use of your password or any other breach of security.  If you provide any information that is untrue, inaccurate, not current or incomplete, or XENDERA has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, XENDERA has the right to suspend or terminate your Account and refuse any and all current or future use of Our Properties (or any portion thereof).  You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.  You agree that you shall not have more than one Account at any given time and shall not use more than one Fitness Data Device per Account.  You agree not to create an Account or use Our Properties if you have been previously removed by XENDERA, or if you have been previously banned from any of Our Properties.
    • Registration Restrictions. Your Account will expire and you will lose any Brand Sponsor Vouchers earned if your Account is not maintained with current information.  Your Account and any Brand Sponsor Vouchers are non-transferrable. You cannot sell, combine, or otherwise share it with any other person.  You agree not to falsify or manipulate Fitness Data.  Any violation of these Terms, including failure to maintain updated and correct information about your Account, will cause your Account to fall out of good standing, and XENDERA may cancel your Account in its sole discretion.  If your Account is cancelled, you may forfeit any pending, current or future Brand Sponsor Vouchers and any other forms of unredeemed value in your Account.
    • Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Our Properties, including but not limited to, a mobile phone or other Fitness Data Device that is suitable to connect with and use Our Properties.  You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Our Properties.
  1. Responsibility for Content.
    • Content. “Content” is defined as any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Our Properties, but specifically excludes Fitness Data.  You acknowledge that all Content, including Our Properties, is the sole responsibility of the party from whom such Content originated.
    • Storage. Unless expressly agreed to by XENDERA in writing elsewhere, XENDERA has no obligation to store any Fitness Data uploaded to Our Properties.  XENDERA has no responsibility or liability for the deletion or accuracy of any Content, including Fitness Data; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Our Properties.
    • Our Properties. Except with respect to Fitness Data, you agree that XENDERA and its suppliers own all rights, title and interest in Our Properties (including but not limited to, any computer code, concepts, artwork, animations, sounds, methods of operation, moral rights, documentation and server software).  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or Our Properties.
    • Trademarks. ”XENDERA” and other related graphics, logos, service marks and trade names used on or in connection with Our Properties are the trademarks of XENDERA and may not be used without permission in connection with any third-party products or services.  Other trademarks, service marks and trade names that may appear on or in Our Properties are the property of their respective owners.
    • Other Content. Except with respect to Fitness Data and Your Content, you agree that you have no right or title in or to any Content that appears on or in Our Properties.
    • Fitness Data. XENDERA does not claim ownership of Fitness Data.
    • License to Fitness Data. You grant the XENDERA a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, your Fitness Data (in whole or in part) for the purposes of operating and providing Our Properties to you and to our Brand Sponsors.    You warrant that the holder of any worldwide intellectual property right, including moral rights, in such Fitness Data, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated aboveYou agree that you, not XENDERA, are responsible for all of Fitness Data that you upload to Our Properties.
    • Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of XENDERA.
    • Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to XENDERA through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that XENDERA has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to XENDERA a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Our Properties.
  2. User Conduct. As a condition of use, you agree not to use Our Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third-party to) take any action that: (i) interferes with or attempts to interfere with the proper functioning of Our Properties or uses Our Properties in any way not expressly permitted by the Terms; or (ii) attempts or engages in, any potentially harmful acts that are directed against Our Properties, including but not limited to violating or attempting to violate any security features of Our Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Our Properties, introducing viruses, worms, or similar harmful code into Our Properties, or interfering or attempting to interfere with use of Our Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” Our Properties.
  3. Third-Party Services.
    • Brand Sponsor Websites & Fitness Applications. Our Properties may contain links to third-party websites and applications (“Brand Sponsor Websites & Fitness Applications”).  When you click on a link to a Brand Sponsor Website or Fitness Application, we will not warn you that you have left Our Properties and are subject to the terms and conditions (including privacy policies) of another website or destination.  Such Brand Sponsor Websites & Fitness Applications are not under the control of XENDERA. XENDERA is not responsible for any Brand Sponsor Websites & Fitness Applications. XENDERA provides these Brand Sponsor Websites & Fitness Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Brand Sponsor Websites & Fitness Applications, or their products or services.  You use all links in Brand Sponsor Websites & Fitness Applications at your own risk. When you leave our Website, our Terms and policies no longer govern.  You should review applicable terms and policies, including privacy and data gathering practices, of any Brand Sponsor Websites & Fitness Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
    • App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third-party from which you received the Application license, e.g., the Apple App Store or Google Play (“App Store”).  You acknowledge that the Terms are between you and XENDERA and not with the App Store.  XENDERA, not the App Store, is solely responsible for Our Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement).  In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access.  You also agree to pay all fees (if any) charged by the App Store in connection with Our Properties, including the Application.  You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Our Properties, including the Application.  You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
  4. You agree to indemnify and hold XENDERA, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively the “XENDERA Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Fitness Data; (b) your use of, or inability to use, Our Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any User; or (e) your violation of any applicable laws, rules or regulations. XENDERA reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with XENDERA in asserting any available defenses.  You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to Our Properties.
  5. Disclaimer of Warranties.
    • As Is. You expressly understand and agree that to the extent permitted by applicable law, your use of our properties is at your sole risk, and our properties are provided on an “as is” and “as available” basis, with all faults. XENDERA parties expressly disclaim all warranties, representations, and conditions of any kind, whether express or implied, including, but not limited to, the implied warranties or conditions of merchantability, fitness for a particular purpose and non-infringement.
      • XENDERA parties make no warranty, representation or condition that: (1) our properties will meet your requirements; (2) your use of our properties will be uninterrupted, timely, secure or error-free; (3) the results that may be obtained from use of our properties will be accurate or reliable; or (4) any errors in our properties will be corrected.
      • Any content downloaded from or otherwise accessed through our properties is accessed at your own risk, and you shall be solely responsible for any damage to your property or person, including, but not limited to, your computer system and any device you use to access our properties, or any other loss that results from accessing such content.
      • The services may be subject to delays, cancellations and other disruptions. XENDERA makes no warranty, representation or condition with respect to services, including but not limited to, the quality, effectiveness, reputation and other characteristics of services.
      • No advice or information, whether oral or written, obtained from XENDERA or through our properties will create any warranty not expressly made herein.
      • From time to time, XENDERA may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at XENDERA ‘s sole discretion.  The provisions of this section apply with full force to such features or tools.
    • No Liability for Conduct of Brand Sponsors and Fitness Applications. You acknowledge and agree that XENDERA parties are not liable, and you agree not to seek to hold XENDERA parties liable, for the conduct of brand sponsors and fitness applications, including operators of external sites, and that the risk of injury from such brand sponsors and fitness applications rests entirely with you.
  6. Limitation of Liability.
    • Disclaimer of Certain Damages. You understand and agree that in no event shall XENDERA parties be liable for any indirect, incidental, special, exemplary, or consequential damages arising out of or in connection with our properties, including, without limitation, any damages resulting from loss of use, data, or profits, whether or not XENDERA has been advised of the possibility of such damages, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with the terms, or from any communications, interactions or meetings with other users of our properties, on any theory of liability, resulting from: (1) the use or inability to use our properties; (2) the cost of procurement of substitute goods or services resulting from any goods, data, information or services purchased or obtained or messages received for transactions entered into through our properties; (3) unauthorized access to or alteration of your transmissions or data; (4) statements or conduct of any third-party on our properties; or (5) any other matter related to our properties, whether based on warranty, copyright, contract, tort (including negligence), product liability or any other legal theory.
    • Cap on Liability. Under no circumstances will XENDERA parties be liable to you for more than fifty dollars ($50).
    • Fitness Data. XENDERA assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any fitness data, content or personalization settings.
    • Basis of the Bargain. The limitations of damages set forth above are fundamental elements of the basis of the bargain between XENDERA and you.
  7. Term and Termination.
    • Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Our Properties, unless terminated earlier in accordance with the Terms.
    • Prior Use. Notwithstanding the foregoing, if you used Our Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used Our Properties (whichever is earlier) and will remain in full force and effect while you use Our Properties, unless earlier terminated in accordance with the Terms.
    • Termination of Services by XENDERA. If you have materially breached any provision of the Terms, or if XENDERA is required to do so by law (e.g., where the provision of the Website, the Application or the Services is, or becomes, unlawful), XENDERA has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in XENDERA’s sole discretion and that XENDERA shall not be liable to you or any third party for any termination of your Account.
    • Termination of Services by You. If you want to terminate the Services provided by XENDERA, you may do so by (a) notifying XENDERA at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to XENDERA’s address set forth below.
    • Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service.  Termination of  all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Fitness Data.  Upon termination of any Service, your right to use such Service will automatically terminate immediately.  You understand that any termination of Services may involve deletion of Fitness Data associated therewith from our live databases and that you may forfeit any pending, current or future Vouchers and any other forms of unredeemed value in your Account.  XENDERA will not have any liability whatsoever to you for any suspension or termination, including for deletion of Fitness Data.  All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
    • Violations. If XENDERA becomes aware of any possible violations by you of the Terms, XENDERA reserves the right to investigate such violations.  If, as a result of the investigation, XENDERA believes that criminal activity has occurred, XENDERA reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.  XENDERA is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Our Properties, including Fitness Data, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms; (3) respond to your requests for customer service; (4) protect the rights, property or personal safety of XENDERA, its Users or the public, or (5) in connection with all enforcement actions or to government officials, as XENDERA in its sole discretion believes to be necessary or appropriate.
    • Breach. In the event that XENDERA determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Our Properties, XENDERA reserves the right to:
      • Warn you via e-mail (to any e-mail address you have provided to XENDERA) that you have violated the Terms;
      • Delete any Fitness Data provided by you or your agent(s) to Our Properties;
      • Discontinue your registration(s) with any of Our Properties, including the Services or any XENDERA community;
      • Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
      • Pursue any other action which XENDERA deems to be appropriate.
    • No Subsequent Registration. If your registration(s) with or ability to access Our Properties, or any other XENDERA community is discontinued by XENDERA due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Our Properties or any XENDERA community through use of a different member name or otherwise.  In the event that you violate the immediately preceding sentence, XENDERA reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
  8. International Users. This Website can be accessed from countries around the world and may contain references to Our Properties and Content that are not available in your country.  These references do not imply that XENDERA intends to announce such Our Properties or Content in your country.  Our Properties are controlled and offered by XENDERA from its facilities in the United States of America.  XENDERA makes no representations that Our Properties are appropriate or available for use in other locations.  Those who access or use Our Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
  9. General Provisions.
    • Electronic Communications. The communications between you and XENDERA use electronic means, whether you visit Our Properties or send XENDERA e-mails, or whether XENDERA posts notices on Our Properties or communicates with you via e-mail.  For contractual purposes, you (1) consent to receive communications from XENDERA in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that XENDERA provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.
    • Release. You hereby release XENDERA Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Website Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of Our Properties.  If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
    • Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without XENDERA’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
    • Force Majeure. XENDERA shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
    • Compliance. If you believe that XENDERA has not adhered to the Terms, please contact XENDERA by emailing us at contact@xendera.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
    • Limitations Period. You and XENDERA agree that any cause of action arising out of or related to the terms, our properties or the content must commence within one (1) year after the cause of action accrues.  Otherwise, such cause of action is permanently barred.
    • Dispute Resolution and Arbitration Agreements.
      • Dispute Resolution Process. To resolve any disputes arising out of or related to these Terms or the Our Properties, a party must first send to the other, by certified mail, a completed form Notice of Dispute (“Notice”).  The Notice to XENDERA should be sent to XENDERA, Attn: 50 avenue du lac Marion 64200 Biarritz, France.  XENDERA will send any Notice to you to the physical address we have on file associated with your XENDERA Account; it is your responsibility to keep your physical address up to date.  All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.  If you and XENDERA are unable to resolve the claims described in the Notice within thirty (30) days after the Notice is sent, you or XENDERA may initiate arbitration proceedings, as set forth below.
      • Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by XENDERA that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement.  Unless otherwise agreed to, all arbitration proceedings shall be held in English.  This Arbitration Agreement applies to you and XENDERA, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
      • Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief.  A Notice to XENDERA should be sent to: XENDERA 50 avenue du lac Marion 64200 Biarritz, France.  After the Notice is received, you and XENDERA may attempt to resolve the claim or dispute informally.  If you and XENDERA do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding.  The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
      • Waiver of Jury Trial. The parties hereby waive their constitutional and statutory rights to go to French court and have a trial in front of a judge or a jury, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement.  Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court.  In the event any litigation should arise between you and XENDERA in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, you and XENDERA waive all rights to a jury trial, instead electing that the dispute be resolved by a judge.
      • Waiver of Class or Consolidated Actions. All claims and disputes within the scope of this arbitration agreement must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one customer or user cannot be arbitrated or litigated joinly or consolidated with those of any other customer or user.
      • Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential.  The parties agree to maintain confidentiality unless otherwise required by law.  This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
      • Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
      • Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted.  Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
      • Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with XENDERA.
      • Small Claims Court. Notwithstanding the foregoing, either you or XENDERA may bring an individual action in small claims court.
      • Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration.  A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
      • Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
      • In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in Aquitaine, France, for such purpose.
    • Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in French.
    • Notice. Where XENDERA requires that you provide an e-mail address, you are responsible for providing XENDERA with your most current e-mail address.  In the event that the last e-mail address you provided to XENDERA is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, XENDERA’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to XENDERA at the following address:  XENDERA 50 avenue du lac Marion 64200 Biarritz, France.  Such notice shall be deemed given when received by XENDERA by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
    • Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    • Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    • Accessing and Download the Application from iTunes. The following applies to any Application accessed through or downloaded from the Apple App Store (“App Store Sourced Application”):
      • You acknowledge and agree that (i) the Terms are concluded between you and XENDERA only, and not Apple, and (ii) XENDERA, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
      • You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
      • In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between XENDERA and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of XENDERA.
      • You and XENDERA acknowledge that, as between XENDERA and Apple, Apple is not responsible for addressing any claims you have or any claims of any third-party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
      • You and XENDERA acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third-party’s intellectual property rights, as between XENDERA and Apple, XENDERA, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
      • You and XENDERA acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
      • Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
    • Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

End of Terms