EFFECTIVE SEPTEMBER 1, 2020:
XIS3D furnishes the App and the XIS3D Services for your personal enjoyment and entertainment. By visiting the App (whether or not you are a registered member) or using the XIS3D Services, you accept and agree to be bound by this Agreement, including any future modifications ("Agreement"), and to abide by all applicable laws, rules and regulations (“Applicable Law”). Please read through this Agreement carefully. XIS3D may modify this Agreement at any time and, to the fullest extent permitted by applicable law, each such modification will be effective upon posting. For this reason, please also ensure that the App remains updated. All material modifications will apply prospectively only. Your continued use of the App or the XIS3D Services following any modification of this Agreement constitutes your acceptance of and agreement to be bound by the Agreement as modified. It is therefore important that you review this Agreement regularly. If you do not agree to be bound by this Agreement and to abide by all Applicable Law, you must discontinue use of the XIS3D Services immediately.
Your access to and use of certain XIS3D Services may require you to accept additional terms and conditions applicable to such XIS3D Services, in addition to this Agreement, and may require you to download software or Content (as defined below). In the event of a conflict between any such additional terms and this Agreement, such additional terms will prevail.
PLEASE NOTE THAT THE “ARBITRATION AGREEMENT” SECTION BELOW CONTAINS PROVISIONS THAT REQUIRE (i) WITH LIMITED EXCEPTIONS, ALL DISPUTES ARISING BETWEEN YOU AND XIS3D UNDER THIS AGREEMENT TO BE RESOLVED IN BINDING ARBITRATION, AND NOT IN COURT, AND (ii) YOU AND XIS3D WAIVE THE RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN CONNECTION WITH SUCH DISPUTES. PLEASE CLICK HERE TO REVIEW THE ARBITRATION AGREEMENT. BY USING THIS APP AND ACCEPTING THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO BE BOUND BY THE ARBITRATION AGREEMENT. PLEASE READ IT CAREFULLY.
Registration and Security
You take full responsibility for your participation on the App. As a condition of using certain features of the App, you may be required to register on the App and/or select a username and password. All registration information you submit to create an account must be accurate and kept up to date. Your failure to do so will constitute a breach of the Agreement, which may result in immediate termination of your account. You may not (i) select or use as a username a name of another person with the intent to impersonate that person; or (ii) use as a username a name subject to any rights of another person without appropriate authorization. XIS3D reserves the right to refuse registration of, or cancel, a username, in its sole discretion. It is your responsibility to notify us of any changes in such information, including but not limited to your contact information.
You are responsible for maintaining the confidentiality of your password and are responsible for all use of your account. It is therefore critical that you do not share your password with anyone. You agree not to use the account, username, email address or password of any other person at any time and not to allow any other person to use your account. Your account is not transferable. You agree to notify XIS3D immediately if you suspect any unauthorized use of, or access to, your account or password. XIS3D reserves the right to change a username, in its sole discretion.
The App is intended solely for your personal and non-commercial use. XIS3D may change, suspend or discontinue the App (or any feature thereof) at any time. XIS3D may also impose limits on certain features and services offered in connection with the App or restrict your access to parts or all of the App without notice or liability. You acknowledge that from time to time the App may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which XIS3D may undertake from time to time; or (iii) causes beyond the control of XIS3D or which are not reasonably foreseeable by XIS3D.
Unless terminated by XIS3D in its sole discretion, this Agreement remains in full force and effect while you use the XIS3D Services. You may terminate your account at any time, for any reason, by sending an email to firstname.lastname@example.org. Deleting the app will not terminate the account. XIS3D may terminate your account and/or access to the XIS3D Services at any time, for any or no reason, with or without prior notice or explanation, and shall have no liability to you for such termination. Even after your user account or access to the XIS3D Services is terminated by you or by XIS3D, this Agreement will remain in effect with respect to your past and future use of the App or the XIS3D Services. Any rights to your account terminate upon your death.
You acknowledge that XIS3D reserves the right to charge fees for any portion of the XIS3D Services. XIS3D will provide you with advance notice of any such fees, including any change in the amount of such fees. If XIS3D suspends or terminates your account and/or access to the XIS3D Services because you have breached the Agreement or violated Applicable Law, you will not be entitled to a refund of any unused portion of such fees or other payments.
Purchasing App Services or Products
XIS3D makes no warranty, and to the fullest extent provided by law, accepts no liability for any loss or damages whatsoever, relating to or in connection with your placement of an order for an App Product with the Processor. XIS3D provides no refunds for, makes no warranty for, and to the fullest extent provided by law, accepts no liability regarding purchases you make within an App. You are solely responsible for any and all transactions utilizing your Personal Financial Information, including, but not limited to, any and all charges. To the fullest extent permitted by law, you acknowledge and agree that in the event Processor experiences a data breach that affects your Personal Financial Information, XIS3D will in no way be responsible or liable to you for any such breach.
XIS3D will not store any record of Personal Financial Information related to purchases or other transactions you make through the XIS3D Services. You should therefore maintain records of all your transactions. If you have any questions regarding your transactions or believe that there is an error or unauthorized transaction or activity associated with transactions utilizing your Personal Financial Information, you must contact the Processor.
Virtual Currency and Virtual App Products
You acknowledge that the XIS3D Services may include a component of fictional credits or currency (collectively, "Virtual Currency"). The Virtual Currency may be used exclusively within the App to gain access to--and certain limited rights to use--virtual items for use exclusively in connection with the App ("Virtual App Products"). Regardless of the terminology used, Virtual Currency represents a limited license right governed solely under this Agreement, and is not redeemable for any sum of money or monetary value from XIS3D or any other person or entity at any time. Virtual Currency provided by XIS3D includes only a limited license right to use such Virtual Currency in connection with the Virtual App Products. Other than a limited, personal, revocable, non-transferable, non-sublicenseable license to use Virtual Currency in connection with XIS3D Services, including in or for any games, applications or other services provided or offered on or through the App and/or Third Party Platforms, and you agree that you have no right, title or ownership in or to any such Virtual Currency. If you purchase or use Facebook Credits, you are agreeing to Facebook’s terms of service, including without limitation any payment terms, and privacy policies, and XIS3D is not a party to any such transactions. YOU ACKNOWLEDGE AND AGREE THAT VIRTUAL CURRENCY AND VIRTUAL APP PRODUCTS HAVE NO CASH VALUE AND THAT NEITHER XIS3D NOR ANY OTHER PERSON OR ENTITY HAS ANY OBLIGATION TO EXCHANGE YOUR VIRTUAL CURRENCY OR VIRTUAL ITEMS FOR ANYTHING OF VALUE, INCLUDING WITHOUT LIMITATION, REAL CURRENCY, AND THAT, IF YOUR ACCOUNT IS TERMINATED, SUSPENDED OR OTHERWISE MODIFIED OR IF YOUR RIGHT TO ACCESS THE XIS3D SERVICES IS TERMINATED, THE VIRTUAL CURRENCY, VIRTUAL APP PRODUCTS AND YOUR ACCOUNT SHALL HAVE NO VALUE.
XIS3D reserves the right to charge fees for the right to access or use Virtual Currency or Virtual App Products, as described in the “Purchasing App Services or Products” section above, and/or may distribute Virtual Currency or Virtual App Products without charge, in its sole discretion. For example, XIS3D, as part of a sweepstakes or promotion, may provide individuals with a certain amount of Virtual Currency or a certain Virtual App Product. Virtual Currency and Virtual App Products will not expire and will not incur fees for non-use unless specifically disclosed at the time of purchase.
Limited Content License
The XIS3D Services are offered for your personal use only and may not be used for commercial purposes. The XIS3D Services contain information, text, files, images, videos, sounds, musical works, works of authorship, software, applications, product names, company names, trade names, logos, designs, and any other materials or content (collectively, “Content”) of XIS3D, its licensors, or assignors (“XIS3D Content”), as well as Content provided by users or other third parties. Content contained in the XIS3D Services is protected by copyright, trademark, patent, trade secret and other laws and, as between you and XIS3D, XIS3D, its licensors, or its assignors, own and retain all rights in the XIS3D Content. XIS3D hereby grants you a limited, revocable, nonsublicensable license to access and display or perform the XIS3D Content (excluding any software code) solely for your personal, non-commercial use in connection with using the XIS3D Services. Except as provided in this Agreement or as explicitly allowed on the XIS3D Services, you may not copy, download, stream, capture, reproduce, duplicate, archive, upload, modify, translate, publish, broadcast, transmit, retransmit, distribute, perform, display, sell, frame or deep-link, make available, or otherwise use any Content contained in the XIS3D Services.
Except as explicitly and expressly permitted by XIS3D or by the limited license set forth above, you are strictly prohibited from creating works or materials (including but not limited to fonts, icons, link buttons, wallpaper, desktop themes, on-line postcards, montages, mash-ups and similar videos, greeting cards and unlicensed merchandise) that derive from or are based on the XIS3D Content. This prohibition applies regardless of whether such derivative works or materials are sold, bartered or given away. Also, you may not either directly or through the use of any device, software, internet site, web-based service or other means, remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notice marked on the Content contained in the XIS3D Services or any digital rights management mechanism, device, or other content protection, copy control or access control measure associated with the Content contained in the XIS3D Services, including geo-filtering mechanisms. Except as necessary in order to make reference to XIS3D, its products and services in a purely descriptive capacity, you are expressly prohibited from using any XIS3D Content in any manner.
You may not, without XIS3D’s written permission, “mirror” any Content contained on the App or any other server. You may not use the App for any purpose that is unlawful or prohibited by the Agreement. You may not use the App in any manner that could damage, disable, overburden, or impair the App, or interfere with any other party’s use and enjoyment of the App. You may not attempt to gain unauthorized access to the App through hacking, password mining or any other means. XIS3D reserves the right, in its sole discretion, to terminate your access to the App, or any portion thereof, at any time, for any reason or for no reason at all, without prior notice or any notice.
Restrictions on Use of XIS3D Services
You understand that you are responsible for all Content that you post, upload, transmit, email or otherwise make available on the App or on, through or in connection with the XIS3D Services (collectively, “User Content”). Additionally, you acknowledge that you have no expectation of privacy in or confidentiality with respect to your User Content. Accordingly, please choose User Content carefully.
You agree not to (and not to assist others to) use the XIS3D Services to:
Post, upload or otherwise transmit or link to content that is: unlawful; threatening; abusive; obscene; vulgar; sexually explicit; pornographic or inclusive of nudity; offensive; excessively violent; invasive of another’s privacy, publicity, contract or other rights; tortious; false or misleading; defamatory; libelous; hateful; or discriminatory;
Violate the rights of others including patent, trademark, trade secret, copyright, privacy, publicity or other proprietary rights;
Harass or harm another person;
Exploit or endanger a minor;
Impersonate or attempt to impersonate any person or entity;
Introduce or engage in activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of or access to a computer or a computer network;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising the App or the XIS3D Services;
Interfere with, damage, disable, disrupt, impair, create an undue burden on, or gain unauthorized access to the XIS3D Services, including XIS3D’s servers, networks or accounts;
Cover, remove, disable, block or obscure advertisements or other portions of the XIS3D Services;
Delete or revise any information provided by or pertaining to any other user of the XIS3D Services;
Use technology or any automated system such as scripts, spiders, offline readers or bots in order to collect or disseminate usernames, passwords, email addresses or other data from the XIS3D Services, or to circumvent or modify any security technology or software that is part of the XIS3D Services;
Send or cause to send (directly or indirectly) unsolicited bulk messages or other unsolicited bulk communications of any kind through the XIS3D Services. If you do so, you acknowledge you will have caused substantial harm to XIS3D, but that the amount of harm would be extremely difficult to measure. To the fullest extent permitted by applicable law, as a reasonable estimation of such harm, and by way of liquidated damages and not as a penalty, you agree to pay XIS3D $50 for each actual or intended recipient of such communication;
Solicit, collect or request any personal information for commercial or unlawful purposes;
Post, upload or otherwise transmit an image or video of another person without that person’s consent;
Engage in commercial activity (including but not limited to advertisements or solicitations of business; sales; contests; sweepstakes; creating, recreating, distributing or advertising an index of any significant portion of the XIS3D Content; or building a business using the XIS3D Content) without XIS3D’s prior written consent;
Use technology or other means to access, index, frame, scrape, or link to the App (including the Content) that is not authorized by the App (including by removing disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized download, stream capture, linking, framing, reproduction, access to, or distribution of XIS3D Content);
Access the App (including the Content) through any automated means, including “robots,” “spiders,” or “offline readers” (other than by individually performed searches on publicly accessible search engines for the sole purpose of, and solely to the extent necessary for, creating publicly available search indices – but not caches or archives – of the App, and excluding those search engines or indices that host, promote, or link primarily to infringing or unauthorized content);
Use the XIS3D Services to advertise or promote competing services;
Use the XIS3D Services in a manner inconsistent with any and all Applicable Law;
Attempt, facilitate, induce, aid and abet, or encourage others to do any of the foregoing.
XIS3D reserves the right, but disclaims any obligation or responsibility, to remove User Content that violates this Agreement, as determined by XIS3D, or for any other reason, in XIS3D’s sole discretion and without notice to you. You acknowledge that XIS3D reserves the right to investigate and take appropriate legal action against anyone who, in XIS3D’s sole discretion, violates this Agreement, including but not limited to, terminating their user account and/or reporting such User Content, conduct, or activity to law enforcement authorities.
You acknowledge, consent and agree that XIS3D may access, preserve or disclose information you provide to the App, including User Content and your account registration information, including when XIS3D has a good faith belief that such access, preservation or disclosure is necessary in order to: (i) protect, enforce, or defend the legal rights, privacy, safety, or property of XIS3D or of our parents, subsidiaries or affiliates (collectively, “XIS3D Affiliates”), or their employees, agents and contractors (including enforcement of this Agreement or our other agreements); (ii) protect the safety, privacy, and security of users of the XIS3D Services or members of the public including in urgent circumstances; (iii) protect against fraud or for risk management purposes; (iv) comply with the law or legal process; or (v) respond to requests from public and government authorities. If XIS3D sells all or part of its business or makes a sale or transfer of its assets or is otherwise involved in a merger or transfer of all or a material part of its business, XIS3D may transfer your information to the party or parties involved in the transaction as part of that transaction.
XIS3D reserves the right to limit the storage capacity of User Content. You assume full responsibility for maintaining backup copies of your User Content, and XIS3D assumes no responsibility for any loss of your User Content due to its being removed by XIS3D or for any other reason.
User Content on Message Boards and Forums
The App offers users the ability to post messages on message boards and forums (collectively, “Forums”), which may be open to the public generally, to all members of the App, or to a select group of members to a specific Forum group. You acknowledge that all Content posted on Forums is User Content, and by posting on Forums you agree to comply with the rules and restrictions on User Content set forth above and any other rules specifically applicable to such Forums. XIS3D reserves the right, but disclaims any obligation or responsibility, to prevent you from posting User Content to any Forum and to restrict or remove your User Content from a Forum or refuse to include your User Content in a Forum for any reason at any time, in XIS3D’s sole discretion and without notice to you.
You acknowledge that messages posted on such Forums are public, and XIS3D cannot guarantee the security of any information you disclose through any Forum; you make such disclosures at your own risk. XIS3D is not responsible for the content or accuracy of any information posted on a Forum, and shall not be responsible for any decisions made based on such information.
Your Proprietary Rights in and License to Your User Content
XIS3D does not claim any ownership rights in the User Content that you post, upload, email, transmit, or otherwise make available (collectively, “Transmit”) on, through or in connection with the XIS3D Services, except with respect to your unsolicited submissions, as described under “Unsolicited Submissions” below; provided, however, that User Content shall not include any XIS3D Content or content owned by an XIS3D Affiliate. By posting or transmitting any User Content on, through or in connection with the XIS3D Services, you hereby grant to XIS3D and our XIS3D Affiliates, licensees, assignees, and authorized users a worldwide, perpetual, irrevocable, non-exclusive, fully-paid and royalty-free, freely sublicensable, transferable (in whole or in part) right (including a waiver of any moral rights you may have) and license to use, modify, excerpt, adapt, publish, translate, create derivative works and compilations based upon, publicly perform, publicly display, reproduce, sublicense, and distribute such User Content, including your name, voice, likeness (including, but not limited to, photographs and avatars) and other personally identifiable information to the extent that such is contained in User Content, anywhere, in any form and on and through all media formats now known or hereafter devised, for any and all purposes including, but not limited to, promotional, marketing, trade or any non-commercial or commercial purposes. Additionally, XIS3D is free to use any ideas, concepts, know-how, or techniques contained within such User Content for any purpose including, but not limited to, developing, manufacturing, marketing and providing commercial products and services, including XIS3D Services. XIS3D‘s use of such User Content shall not require any further notice or attribution to you and such use shall be without the requirement of any permission from or any payment to you or any other person or entity. You hereby appoint XIS3D as your agent with full authority to execute any document or take any action XIS3D may consider appropriate in order to confirm the rights granted by you to XIS3D in this Agreement.
You represent and warrant that: (i) you own the User Content Transmitted by you on, through or in connection with the XIS3D Services, or otherwise have the right to grant the license set forth in this Section, and (ii) the Transmission of User Content by you on, through or in connection with the XIS3D Services and Third Party Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of the use of any User Content Transmitted by you on or through the XIS3D Services or Third Party Services.
If you delete your User Content from the App, XIS3D’s license to such User Content will end after a reasonable period of time necessary for the deletion to take full effect. However, the User Content may be retained in XIS3D’s back-up copies of the App, which are not publicly available. Account deletion does not include chat history deletion. Furthermore, to the extent that XIS3D made use of your User Content before you deleted it, XIS3D will retain the right to make such pre-existing uses even after your User Content is deleted. You acknowledge that (i) deletion of your User Content from App will not result in, and XIS3D assumes no responsibility for, the deletion of such User Content by any third parties who were provided with or had access to such User Content prior to your deleting it from App, and (ii) termination of your account or your use of the XIS3D Services will not result in the immediate or automatic deletion of your User Content consistent with this Agreement.
Removal of Material that Infringes Copyrights
XIS3D respects the intellectual property of others and requires that our users do the same. XIS3D has a policy that provides for the termination in appropriate circumstances of subscribers and account holders of XIS3D Services who are repeat infringers. XIS3D also reserves the right to remove or disable access to any transmission of Content that infringes the copyright of any person under the laws of the United States upon receipt of a notice that substantially complies with the requirements of 17 U.S.C. § 512(c)(3) as set forth above.
If you believe material on XIS3D Services infringes your copyright.
If you believe that any material residing on or linked to from XIS3D Services infringes your copyright, you must send XIS3D's designated Copyright Agent a written notification of claimed infringement that contains substantially all of the following information: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the XIS3D Services (such as the URL(s) of the claimed infringing material); (c) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and an email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) a statement by you that the above information in your notification is accurate and a statement by you, made under penalty of perjury, that you are the owner of an exclusive right that is allegedly infringed or are authorized to act on the owner's behalf; and (f) your physical or electronic signature. XIS3D's Copyright Agent for notification of claimed infringement can be reached at:
Subject line: FRIENDS COLORING DMCA Notice
If you posted material to XIS3D Service that was removed due to notice by a copyright owner.
If you posted material to XIS3D Services that XIS3D removed due to a notice of claimed infringement from a copyright owner, XIS3D will take reasonable steps promptly to notify you that the material has been removed or disabled. This notice may be by means of a general notice on the App or by written or electronic communication to such address(es) you have provided to XIS3D, if any. You may provide counter-notification in response to such notice in a written communication that includes substantially all of the following: (i) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (ii) a statement by you, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (iii) your name, address, telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which XIS3D may be found, and that you will accept service of process from the person who provided notification requesting the removal or disabling of access to the material or such person’s agent; and (iv) your physical or electronic signature.
Please note that, under 17 U.S.C. §512(f), any person who knowingly makes material misrepresentations in a notification of claimed infringement or any counter-notification may be liable for damages.
Your Exposure to Others’ User Content
You understand that XIS3D does not control the User Content posted by users via the XIS3D Services and, as such, you understand you may be exposed to offensive, inaccurate or otherwise objectionable User Content. XIS3D assumes no responsibility or liability for this type of Content. If you become aware of any misuse of the XIS3D Services, including in violation of any “Restrictions on Use of XIS3D Services,” please report it immediately to XIS3D email@example.com. XIS3D assumes no responsibility for monitoring the XIS3D Services for inappropriate User Content or user conduct. If at any time, XIS3D chooses in its sole discretion to monitor the XIS3D Services, XIS3D nonetheless assumes no responsibility for Content other than XIS3D Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of any user.
Third Party Links and Services
You are solely responsible for your interactions with other users of the App and the XIS3D Services, providers of Third Party Services or any other parties with whom you interact on, through or in connection with the XIS3D Services. XIS3D reserves the right, but has no obligation, to become involved in any way with any disputes between you and such parties.
THE XIS3D SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND XIS3D DOES NOT GUARANTEE OR PROMISE ANY SPECIFIC RESULTS FROM USE OF OR CONTINUOUS AVAILABILITY OF THE XIS3D SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, XIS3D EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES IMPLIED FOR A COURSE OF PERFORMANCE OR COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, XIS3D MAKES NO WARRANTY THAT YOUR USE OF THE XIS3D SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS TO THE XIS3D SERVICES WILL BE CORRECTED, THAT THE XIS3D SERVICES OR THE SERVERS ON WHICH THEY ARE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY INFORMATION OBTAINED BY YOU ON, THROUGH OR IN CONNECTION WITH THE XIS3D SERVICES OR THIRD PARTY SERVICES (INCLUDING, BUT NOT LIMITED TO, THROUGH USER CONTENT OR THIRD PARTY ADVERTISEMENTS) WILL BE ACCURATE, RELIABLE, TIMELY OR COMPLETE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL XIS3D BE RESPONSIBLE FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) RESULTING FROM USE OF THE XIS3D SERVICES, PROBLEMS OR TECHNICAL MALFUNCTION IN CONNECTION WITH USE OF THE XIS3D SERVICES, ATTENDANCE AT A XIS3D EVENT, ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH THE XIS3D SERVICES, ANY USER CONTENT, ANY THIRD PARTY ADVERTISEMENT OR THIRD PARTY SERVICE TRANSMITTED ON, THROUGH OR IN CONNECTION WITH THE XIS3D SERVICES, OR THE CONDUCT OF ANY USERS OF THE XIS3D SERVICES, WHETHER ONLINE OR OFFLINE. YOUR USE OF USER CONTENT, THIRD PARTY ADVERTISEMENTS, THIRD PARTY SERVICES AND THE GOODS OR SERVICES PROVIDED BY ANY THIRD PARTIES IS SOLELY YOUR RESPONSIBILITY AND AT YOUR OWN RISK.
YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE XIS3D SERVICES, AND ANY INFORMATION TRANSMITTED OR RECEIVED IN CONNECTION THEREWITH, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, YOU ASSUME RESPONSIBILITY FOR THE ENTIRE COST OF ANY MAINTENANCE, REPAIR OR CORRECTION TO YOUR COMPUTER SYSTEM OR OTHER PROPERTY OR RECOVERY OR RECONSTRUCTION OF LOST DATA NECESSITATED BY YOUR USE OF THE XIS3D SERVICES.
Limitation on Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, XIS3D WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFIT DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE XIS3D SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, XIS3D'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO XIS3D FOR THE XIS3D SERVICES DURING THE TERM OF YOUR USE OF THE XIS3D SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF XIS3D’S ACTS OR OMISSIONS OR YOUR USE OF THE APP OR THE XIS3D SERVICES ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF THE APP OR THE XIS3D SERVICES.
THE LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF XIS3D HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
United States Jurisdiction
XIS3D provides the XIS3D Services in the United States of America. XIS3D does not represent that the XIS3D Content or the XIS3D Services are appropriate (or, in some cases, available) for use in other locations. If you use the App or the XIS3D Services from a jurisdiction other than the United States, you agree that you do so of your own initiative, and you are responsible for complying with local laws as applicable to your use of the App or the XIS3D Services.
Not all of the App Products, including Virtual App Products, are available worldwide or nationwide, and XIS3D makes no representation that you will be able to obtain any App Product or Virtual App Product in any particular jurisdiction, either within or outside of the United States.
U.S. Export Controls
Software available in connection with the XIS3D Services is further subject to United States export controls. No such software may be downloaded from the XIS3D Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using such software is at your sole risk.
(2) This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs the interpretation and enforcement of this Arbitration Agreement. This Arbitration Agreement shall survive termination of this Agreement.
(3) You and the XIS3D acknowledge and agree to abide by the following rules for arbitration: (a) YOU AND XIS3D 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, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING, AND THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CLASS-WIDE RELIEF; (b) the arbitrator may award any individual relief or individual remedies that are permitted by Applicable Law; and (c) each side pays his, her or its own attorneys' fees, except as otherwise provided in paragraph 5 below.
(4) Regardless of how the arbitration proceeds, each of you and XIS3D shall cooperate in good faith in the exchange of non-privileged documents and information as necessary in accordance, and the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions.
(5) Each of you and XIS3D may incur attorneys’ fees during the arbitration. Each side agrees to pay his, her or its own attorneys' fees unless the claim(s) at issue permit the prevailing party to be paid its attorneys' fees, and in such instance, the fees awarded shall be determined by the Applicable Law(s). In addition to whatever rights you may have to recover your attorneys’ fees under Applicable Law, if you prevail in the arbitration, and if XIS3D failed to make a settlement offer to you before the arbitration or the amount you win is at least 25% greater than XIS3D’s highest settlement offer, then XIS3D will pay your reasonable attorneys’ fees in addition to the amount the arbitrator awarded. If XIS3D wins the arbitration, you will be responsible for your own attorneys’ fees. In addition, if the arbitrator, at the request of the winning party, finds that the losing party brought a claim or asserted a defense frivolously or for an improper purpose, then regardless of the amount in dispute, the arbitrator must order the losing party to pay both sides’ arbitration fees and may order the losing party to pay the winning party’s reasonable attorneys’ fees, unless such an award of fees is prohibited by Applicable Law.
(6) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. The arbitrator may not order XIS3D to pay any monies to or take any actions with respect to persons other than you, unless XIS3D explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order. Further, unless XIS3D expressly agrees, the arbitrator may not consolidate other persons’ claims with yours, and may not otherwise preside over any form of a representative, multi-claimant or class proceeding.
(7) You and XIS3D agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged as part of any mediation, proceedings of the arbitration, the arbitrator’s decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or court order.
(8) With the exception of subpart (a) in paragraph (3) (i.e., the waiver of the ability to proceed on behalf of multiple claimants or a purported class), if any part of this Arbitration Agreement is deemed invalid, unenforceable, or illegal, then the balance of this Arbitration Agreement shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (a) in paragraph (3) is found invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, but the rest of this Agreement, including the provisions governing where actions against XIS3D must be pursued, the choice of governing law, and our mutual waiver of the right to a trial by jury, will remain in effect and apply to any claim that, for this or any other reason, proceeds in court rather than in arbitration.
To the fullest extent permitted by applicable law, the Agreement will be governed by, and construed in accordance with, the laws of the State of California, without regard to its conflict of law provisions.
Except with respect to Disputes to be resolved through an arbitration process in accordance with the Arbitration Agreement contained above and to the fullest extent permitted by applicable law, you and XIS3D agree to submit to the exclusive jurisdiction of the courts located in Los Angeles, California to resolve any Dispute arising out of the Agreement or the XIS3D Services. YOU HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE APP OR THE XIS3D SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ACCRUES. AFTER SUCH PERIOD, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
You agree to indemnify and hold XIS3D, its XIS3D Affiliates, subcontractors and other partners, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including, but not limited to, reasonable attorneys' fees, made by any third party due to or arising out of or in connection with your misuse of the App or the XIS3D Services (including, without, limitation, any use of your account, whether or not authorized by you), your breach of this Agreement, your violation of any rights of another or any Content that you Transmit through the XIS3D Services.
XIS3D does not knowingly accept, via the XIS3D Services or otherwise, unsolicited submissions including, without limitation, submissions by you of blog ideas, articles, scripts, story lines, fan fiction, characters, drawings, information, suggestions, proposals, ideas or concepts. XIS3D requests that you do not make any unsolicited submissions. Any similarity between an unsolicited submission and any elements in any XIS3D or XIS3D Affiliate’s creative work including, without limitation, a film, series, story, title or concept would be purely coincidental. If you do send any submissions to XIS3D via the XIS3D Services that are unsolicited (including but not limited to any Forum), however, you agree that (i) your unsolicited submissions are not being made in confidence or trust and that by making such submissions no contractual or fiduciary relationship is created between you and XIS3D; (ii) any such unsolicited submissions and copyright become the property of and will be owned by XIS3D (and are not User Content licensed by you to XIS3D under “Your Proprietary Rights in and License to Your User Content”) and may be used, copied, sublicensed, adapted, transmitted, distributed, publicly performed, published, displayed or deleted as XIS3D sees fit; (iii) you are not entitled to any compensation, credit or notice whatsoever in connection with such submissions; and (iv) by sending an unsolicited submission you waive the right to make any claim against XIS3D or XIS3D Affiliates relating to any unsolicited submissions by you, including, without limitation, unfair competition, breach of implied contract or breach of confidentiality.
The failure of XIS3D to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The Section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. Except as otherwise expressly provided herein, if any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
You agree that any notices the XIS3D may be required by Applicable Law to send to you will be effective upon XIS3D’s sending an e-mail message to the e-mail address you have on file with XIS3D or publishing such notices on the informational page(s) of the App.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and XIS3D as a result of this Agreement or your use of the XIS3D Services. A printed version of this Agreement and of any notice related to it shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other business documents and records originally generated and maintained in printed form.
Nothing contained in this Agreement limits XIS3D’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the XIS3D Services or information provided to or gathered by us in connection with such use.
Please contact us at: firstname.lastname@example.org with any questions regarding this Agreement.