1. Acceptance of Terms
1.1 All services provided to you by XTools Pro, Inc. (hereinafter referred to as " XTools") are subject to given Terms of Using Website Content (hereinafter referred to as "Terms"). Read the Terms carefully before using the XTools’s websites, as it listed below (hereinafter referred to as “Website”), in any manner. By using the Website you agree to all terms and conditions stated in the given Terms. If you do not agree to be bound by terms and conditions herein, do not use or access the Website under any circumstances.
1.2 The given agreement concerning terms of using the Website content is concluded between XTools and you as an individual or a single business entity (hereinafter referred to as “You”). If You are using this Website on behalf of your employer, You hereby confirm that You are authorized to comply with these Terms on your employer’s behalf.
XTools provides You with access to different resources including creation and using of personal account, technical support services and information about its software products (hereinafter collectively referred to as "Services"). These Terms shall govern Your use of any new features that augment or enhance currently provided Services, including release of new XTools Services. In addition to the Terms and unless otherwise noted, all purchases You make through the Website shall be governed by the XTools End-User License Agreement, unless You have concluded any other separate written purchase or license agreement with XTools for any specific software product, in which case that specific purchase shall be governed by that separate purchase or license agreement. In the event of any disagreements or conflicts over: (a) these Terms, and (b) XTools End-User License Agreement or any other applicable purchase or license agreement, the latter document shall prevail.
2. Your Obligations
2.1 With respect to Your use of Services, You agree to be solely responsible for: (a) providing true, accurate, current, and complete information about You as prompted by the Service’s registration form (hereinafter referred to as "Registration Data"), and (b) maintaining and promptly updating your Registration Data to keep it true, accurate, current and complete. You acknowledge and agree that some Services may provide password-restricted access to protect information about the customer. By using this Website and/or registering at the Website to obtain Services You agree to be solely responsible for keeping your password secure and protected. You agree to be solely responsible for any unauthorized use of this Website content and/or any provided Services. If You provide information that is false, inaccurate, out of date, incomplete, or if XTools has reasonable grounds to suspect that such information is false, inaccurate, not current, or incomplete, XTools may lock or delete Your account and so disallow You to use some specific or all Services.
3. Confidentiality of XTools Information
By getting access to provided Services, You hereby agree to comply with the following confidentiality provisions:
3.1 You acknowledge that while using the Website you may obtain direct access to certain confidential information of XTools (hereinafter referred to as "Information"; any such Information will be clearly marked as confidential), which may not be disclosed to any third party without prior written permission of XTools. You agree to keep this Information in strict confidence, to not disclose, copy, reproduce or transfer it to any third party or to otherwise use it for any purposes not specified in the given Terms. You may use Information published at the Website only for purchasing XTools products and services, as well as for getting maintenance or support services for purchased XTools products. All rights to Information remain with XTools and/or its suppliers (hereinafter referred to as “Suppliers”) only. You agree, either as an individual or on behalf of your employer, to comply with all provisions stated in this Section 3. Furthermore, if You are acting on behalf of Your employer, Your employer hereby agrees to indemnify You for violation of any provisions stated in this Section 3.
You agree and acknowledge that You do not acquire any rights to Information, except for the limited right to use Information as described above.
3.2 The given Terms shall impose no obligation upon You with respect to Information to the extent that You can provide respective legally sufficient evidence that: (a) you already knew this Information prior to receiving it from XTools without obligation to maintain its confidentiality; (b) the Information is or became publicly known other than as a result of any act or omission by You, or other acts that do not violate any of the given Terms; (c) You obtained this Information from the third party who had the right to disclose it and who had no obligations to keep such Information confidential; (d) You disclosed Information as requested by the court or any other governmental body, or in order to establish limits of rights of some of the involved parties, and that this Information has been disclosed only after respective prior notice to XTools, and that XTools has been provided with opportunity to object to such disclosure.
4. Your Conduct
4.1 You agree and acknowledge that any information, data, text, messages, or other materials (hereinafter referred to as "Content"), whether publicly posted or privately transmitted, shall be sole responsibility of the person from whom such Content has been obtained. This means that You, and not XTools, shall be solely responsible for all Content that you upload, post or otherwise transmit via the Website (hereinafter referred to as "User Content"), and for its validity, legitimacy, completeness, applicability and copyright compliance. XTools shall not control any User Content posted via the Website and, as such, shall not guarantee accuracy, integrity or quality of such User Content.
4.2. You acknowledge and agree that XTools is under no obligation to and does not control any User Content created, provided or uploaded to the Website. XTools reserves the right (but no obligation) to edit or remove any User Content that has been determined as harmful, offensive or otherwise violating any of these Terms. XTools may also remove any User Content that contains third-party commercial advertisements, or includes any personal information about third parties. Violation of these restrictions (hereinafter referred to as "Restrictions") may also result in termination or suspension of Your account. These Restrictions shall apply to any and all User Content provided through Website, including email messages, newsgroup postings, chats, and personal or commercial web pages.
4.3 You agree not to publish or store at Website any User Content that violates or infringes anyone’s intellectual property rights (including copyrights, trademarks, trade secrets, patents, publicity rights or confidential ideas) or that is obscene, obscene as to minors, pornography, defamatory, racist, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.
4.4 You agree not to use Website in any way for spamming or transmitting chain letters, sending junk emails or bulk communications. You agree not to use XTools domain name as return email address for transmitting of any information obtained from any other resources or throughout using of any other services. You shall not pretend to be someone else or spoof someone’s identity when using the Website.
4.5 You agree not to use any Website content for any unlawful activities that have not been mentioned above. Additionally, you agree NOT to use Website to:
(a) impersonate any person or entity, including, but not limited to, any XTools employees, publish any false statements or any other information, that may mislead the public as to Your affiliation to this person or entity
(b) forge any headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Website or develop any hidden pages or images (not linked to Website from other accessible pages)
(c) upload, publish or otherwise transmit any Content that you do not have right to disclose to public under any legal right or any right guaranteed by any respective contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment agreement or nondisclosure agreement)
(d) upload, publish or otherwise transmit any materials containing software viruses or any other computer codes, files or programs designed to interrupt, destroy or limit functionality of any computer software, hardware, or any telecommunication equipment
(e) disrupt the normal flow of dialogue, set the screen to scroll faster than other Website users are able to type, or otherwise act in a manner that negatively affects ability of other users to exchange information online
(f) intentionally or unintentionally violate any applicable regional, federal and international laws, and any other legally valid regulations
(g) collect or store personal data about other users.
5. User Content, Ownership, Rights and Liability
5.1 XTools does not claim ownership of any User Content that You or other users publish, upload, submit or otherwise provide to the Website. By submitting any User Content to XTools for publishing at the Website, You grant XTools and all other users of Websites a worldwide, royalty-free, and nonexclusive license to reproduce, modify, distribute, transmit, display, perform, adapt, and publish this User Content (including publishing in digital form).
5.2 If otherwise is explicitly stated by these Terms, all User Content published at the Website is deemed to be provided on a non-confidential basis. XTools is not responsible for validity of such User Content anyway.
6. Junk Mail
6.1 You agree that sending email spam messages or any other unsolicited messages in violation of these Terms will result in irreparable harm to XTools, as well as that XTools is entitled to legal protection with regard to transfer of such spam messages or any other unsolicited messages. XTools reserves the right to block, filter or delete any such unwanted email messages.
7.1 You agree to indemnify and hold XTools and its subsidiaries, affiliates, officers, agents, co-branders, alliance members, or other partners, and employees harmless from any claim or demand (including reasonable attorneys’ fees), made by any third party due to or arising out of your User Content, your use of the Services, including any use by your employees, your connection to the Services, your violation of the Terms, or your violation of any rights of third parties.
8. Notifications, Modification and Termination of Services
8.1 XTools may inform You about changes made in the Terms or in any other provisions by publishing respective notices or links to such notices. XTools reserves the right at any time and from time to time to modify or temporarily or permanently discontinue providing any Services (or any part thereof) with or without publicly displayed notice about it. XTools may make any changes to the XTools Online store, including information about its products, services, programs, and prices, at any time without notice.
9. Advertisements and Promotions
9.1 XTools may publish any advertisement and promotion materials obtained from third parties at its XTools Website. Any correspondence or business contracts with or participation in any promotion activities of third parties whose advertising materials are placed at the XTools Website, including information about payment and delivery of any related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, shall be discussed and agreed between You and such third party advertisers only. XTools shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such non-XTools advertisers on the Website.
10.1 The XTools Website and information resources of third parties may provide links to other websites or internet resources. Because XTools has no control over such websites and resources, you acknowledge and agree that XTools shall not be responsible for availability of such external websites or resources, and shall not endorse and shall not be responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. XTools shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third party content, goods or services available on or through any such website or resource.
11. Intellectual Property Rights
11.1 You may use XTools Software and Services only according to applicable contract or license agreement governing use of such Software or Service. You may use Services only during fixed time, fixed number of times, by fixed number of people or otherwise according to any other terms specified in the applicable contract or license agreement. The Services, including updates, release of new versions, support, maintenance, enhancement or redesign of licensed Software or Services can be exclusively used: (а) in systems for which this Software or Services have been specifically licensed; and (b) based on terms of the applicable license agreement and warranty specified for original Software product or Service.
11.2 In terms of the given document the XTools’s trademarks (hereinafter referred to as “Trademarks”) mean any names, trademarks, brands, logos, samples, packaging and any other symbols, that XTools uses in connection with its Software products or Services. You may not remove or modify any XTools’s Trademarks and you accept and acknowledge XTools’s rights to any and all XTools’s Trademarks. You agree not to combine any XTools’s Trademarks with any of Your trademarks, service marks, company names, internet addresses, domains or any other such symbols.
11.3 XTools is committed to respecting any intellectual property rights of third parties and so asks its users to do the same. XTools may at any time and at its sole discretion remove any account or terminate access to its Website and Services for users violating any intellectual property rights of third parties. If You believe that Your work has been copied in a way that constitutes copyright infringement, please contact our copyright agent at firstname.lastname@example.org.
11.4 All Content published at this Website (except for the User Content) is provided by or to XTools by its respective manufacturers, authors, developers and vendors (hereinafter referred to as "Third Party Providers") and is the copyrighted work of XTools and/or the Third Party Providers. Except as stated herein, no part of the Content may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of XTools or the Third Party Provider. No part of the Website, including logos, graphics, sounds or images, may be reproduced or re-transmitted in any way, or by any means, without prior written permission of XTools. You also may not, without XTools’s written permission, "mirror" any Content published at this Website on any other server.
11.5 No provision of the given Terms shall be interpreted as providing any license under any of XTools’s or any Third Party Provider’s intellectual property rights, whether by estoppel, implication, or otherwise. You acknowledge sole responsibility for any unauthorized obtaining and/or using of any such licenses.
11.6 You are granted with permission to display, copy and download Website Content provided that: (1) such Content is marked with the respective XTools copyright notice (either proprietary or non-property), (2) such Content is used solely for personal, non-commercial and informational purposes and will not be copied or posted on any networked computer or broadcast in any media, except as explicitly permitted by valid license agreement covering such materials, and (3) no modifications of any of the Content will be made. This permission terminates automatically without notice if You breach any of these terms or conditions. Upon termination You must immediately destroy any downloaded and/or printed out Content.
11.7 The third party Content or any User Content has not been independently authenticated in whole or in part by XTools. XTools does not provide, sell, license, or lease any Content other than Content specifically identified as being provided by XTools.
12. Disclaimer of Warranties
12.1 Your use of the Services and any Software is at Your sole risk. The Software, Services and Information are provided on an "as is" and "as available" basis. The Website Content is provided "as is" and "with all faults". XTools disclaims all express or implied conditions, representations, and warranties of any kind, including any implied warranty or condition of merchantability, fitness for a particular purpose, title, quiet enjoyment or non-infringement. XTools makes no representations, warranties, conditions or guaranties as to the quality, suitability, truth, accuracy or completeness of any of the Content published at the Website. XTools may allow users downloading from its Website any Content provided by third parties. Any questions regarding such Content shall be addresses to respective Third Party Providers. In no event XTools shall be liable for accuracy or completeness of Content or Information obtained from Third Party Providers and published at the Website.
12.2 XTools makes no warranty or condition that: (i) any Services will meet Your requirements, (ii) any Services or Websites will be uninterrupted, timely provided, secure, or error-free, (iii) any results that may be obtained from use of any Websites or Services will be accurate or reliable, (iv) quality of any Websites, Services, Information, or other material purchased or obtained by You via Website will meet Your expectations.
12.3 Downloading from Website or otherwise obtaining of any materials found at the Website is performed at Your own discretion and risk and You are solely responsible for any possible damage done to Your computer system or loss of data that results from download of any such materials, including any damages caused by computer viruses.
12.4 No recommendations or other information, whether oral or written, obtained by You from XTools or through using Website shall create any warranty or condition not expressly stated in the given Terms. XTools’s employees are not authorized to vary these Terms.
13. Limitations of Liability
13.1 To the extent not prohibited by applicable law, XTools is not liable for any direct, indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to, damages for loss of profits, revenue, goodwill, use, data, electronically transmitted orders, or other economic advantage (even if XTools has been advised of the possibility of such damages), however caused and regardless of the theory of liability, whether in contract (including fundamental breach), tort (including negligence) or otherwise arising out of or related to: (i) use of or inability to use Websites or Services; (ii) cost of procurement of substitute goods and Services resulting from any goods, data, Software, Information or Services purchased or obtained, received messages or entered transactions (iii) unauthorized access to or alteration of Your personal data; (iv) statements or conduct of any third party with regard to any Services or published at the Website; or (v) any other matter relating to Websites or Services, including Content you may download, use, modify or distribute via Website.
13.2 You agree to have sole responsibility for adequate protection and backup of data and/or equipment used in connection with the Website and to not make any claim against XTools for any lost data, re-run time, inaccurate output, work delays or lost profits resulting from Your use of the Content.
13.3 You agree to hold XTools harmless from, and You confirm not to sue XTools for any claims based on using the Website, whether in contract (including fundamental breach), tort (including negligence) or otherwise. Some jurisdictions do not allow exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to You.
14. General Information
14.1 The Terms constitute the entire agreement between You and XTools and govern Your use of Services or Websites, superseding any prior agreements between You and XTools (including, but not limited to any prior versions of the Terms). You may also be subject to additional terms and conditions that may apply when You use other XTools services, third-party content or third-party software. You shall not assign or otherwise transfer the Terms nor any right granted hereunder. Sections 3, 4, 10, 11, 12, 13 and 14 remain valid after termination of the Terms.
14.2 The applicable international law shall govern any action related to Content of the Website and these Terms.
14.3 XTools is based in Sunnyvale, CA and makes no representation that this Content is appropriate or available for use in other locations. If you access this Website from other locations, You are solely responsible for compliance with any applicable local laws including but not limited to export and import regulations applied in other countries.
14.4 This Website may include inaccuracies or typos. XTools and Third Party Providers may make improvements and/or changes in the products, services, programs, and prices provided at this Website at any time without notice. Respective changes may be periodically made to the Website as well. XTools may amend these Terms at any time by publishing the amended Terms at the Website. The revised Terms shall become effective immediately upon publishing of the modified version. You agree that Your express acceptance, or Your continued use of the Website after publishing of the revised Terms shall constitute your full acceptance of the Terms.
14.5 The failure of XTools to exercise or enforce any right or provision of the Terms does not constitute a waiver of such rights or provisions. If any court of competent jurisdiction finds any provision of the Terms to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. The section titles used in the Terms are for convenience only and have no legal or contractual effect.
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