Last Updated: 9/11/2015
Last Updated: 9/11/2015
The “Application” or “App” shall mean Xooker’s mobile marketing services where subscribers can utilize a mobile marketing platform (the “Site”) allowing Merchants to provide services in order to market their business interests directly to subscribers. Merchants may also provide coupons (“Coupon(s)”) which can be redeemed for Merchant’s goods and/or services at a discount, which are offered to subscribers.
When you use Xooker Services, you agree to a binding contract with Xooker, and to follow this Agreement and all applicable laws. If you’re using the Xooker Services on behalf of a company, organization, or other entity, then you and that entity represent and warrant that you’re authorized to grant all permissions and licenses provided in these terms and bind the entity to these terms, and that you agree to these terms on the entity’s behalf. You agree that we may automatically update these Xooker Services, and this Agreement will apply to such updates.
Subject to the terms and conditions of this Agreement, and conditioned on your compliance therewith, Xooker hereby grants to you a non-exclusive, non-sublicensable and non-transferable, limited license to use the Licensed Software and Documentation (“Xooker Materials”) solely for the Permitted Use during the Term. All trademarks, copyrights, database rights and other intellectual property rights of any nature in the Application together with the underlying software code are owned by Xooker or its third party suppliers. You may not install or use the Xooker Materials for any other purpose without Xooker’s prior written consent. You shall not use the Xooker Materials in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email (“spam”), multi-level marketing proposals, hate materials, hacking/surveillance/interception/descrambling equipment, libelous, defamatory, obscene, pornographic, abusive or otherwise offensive content, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, gambling, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, weapons and accessories, automatic or autonomous control of vehicles, aircraft or other mechanical devices, dispatch or fleet management, or emergency or life-saving purposes.
You may only create and hold one account on the Site for your personal use. You are responsible for updating and correcting information you have submitted to create or maintain your account. As part of your account settings, you have the option to save, edit or delete your personal information, including. You understand and agree that Xooker shall have no responsibility for any incident arising out of, or related to, your account settings. You must safeguard your password and supervise the use of your account. You are solely responsible for maintaining the security of your account and maintaining settings that reflect your preferences. We will assume that anyone using the Site or transacting through your account is you. You agree that you are solely responsible for any activity that occurs under your account.
Xooker reserves the right, in its sole discretion to modify this Agreement at any time by posting a notice to www.xooker.com. You shall be responsible for reviewing and becoming familiar with any such modification. Such modifications are effective upon first posting or notification and use of the Xooker Services by you following any such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
During the Term, Xooker will provide you with all Maintenance Releases (including updated Documentation) that Xooker may, in its sole discretion, make generally available to its users at no additional charge. All Maintenance Releases, on being provided by Xooker to you hereunder, are deemed Licensed Software subject to all applicable terms and conditions in this Agreement. You will install all Maintenance Releases as soon as practicable after receipt. You do not have any right hereunder to receive any new versions of the Licensed Software that Xooker may, in its sole discretion, release from time to time.
Xooker may terminate your use of the Application at any time due to a breach of these Terms for any or no reason. Xooker may provide notice of termination to you, at its option, but it is not required to do so. Upon any termination, (a) the rights and licenses granted to you herein shall terminate; and (b) you must cease all use of the Application.
In no event will Xooker be liable for any direct, indirect, special, punitive, exemplary or consequential losses or damages of any kind whatsoever arising out of your use or access to the Application or failure for the Application to work, including the incurrence of expense, loss of profit, emotional pain and suffering, or the like, whether or not in the contemplation of the parties, and whether or not based on breach of contract, tort (including negligence and malpractice), product liability or otherwise.
By downloading the Application, you hereby agree to release, waive, covenant not to sue and forever discharge Xooker and its affiliates, agents, owners and employees, from any and all liabilities, claims, actions, damages, costs, or expenses of any nature arising out of or in any way connected with your use of the Application, and you further agree to indemnify and hold each of the foregoing harmless against any and all such liabilities, claims, actions, damages, costs, or expenses including, but not limited to, all attorneys’ fees and disbursements through and including any legal action or appeal. You further agree that this waiver of claims and release of liability includes any claims based on the negligence, action or inaction of any of the foregoing indemnities.
Xooker is not liable to you for any damage or alteration to your equipment including but not limited to any computer equipment, handheld devices, or mobile telephones as a result of the installation or use of the Application.
Nothing in this Agreement shall exclude or limit any liability that cannot be excluded or limited under applicable law.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, XOOKER DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE APPLICATION, SOFTWARE AND ANY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. XOOKER DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE SITE SHALL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICES WILL BE ERROR-FREE OR THAT ANY ERRORS, OMISSIONS OR MISPLACEMENT’S IN THE SERVICES WILL BE CORRECTED, OR THAT SERVICES WILL RESULT IN ANY REVENUE OR PROFIT FOR SUBSCRIBER.
Any claim arising out of or relating to any error or omission in the Services must be made within 120 days of first release. Otherwise, the claim shall be deemed waived by subscriber. This Agreement shall be governed by and construed in accordance with the laws of the State of Kentucky, without giving effect to the conflict of law principles thereof. The parties irrevocably consent to the exclusive personal jurisdiction (except as to actions for the enforcement of a judgment, in which case the jurisdiction will be non-exclusive) of the federal and state courts located in the State of Kentucky.
All claims, disputes or controversies of whatever nature between you and Xooker arising out of or in any way connected with the execution, interpretation, termination or performance and/or breach of this Agreement (including the validity, scope and enforceability of this arbitration provision) or the relationship created by this Agreement (each, a “Dispute”) shall, except as provided below, be solely and finally settled by binding arbitration conducted in accordance with the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association, which shall be held in Kentucky. The parties agree that the arbitration award shall be final and shall not be subject to judicial review. Judgment on the arbitration award shall be entered and enforced in any court having jurisdiction over the parties or their assets. It is the intent of the parties that these arbitration provisions be enforced to the fullest extent permitted by applicable law, including the Federal Arbitration Act, 9 U.S.C. § 2. Nothing contained in this Section 12 shall prevent the parties from seeking injunctive relief, or other equitable relief as otherwise permitted by law or equity. No person or entity except Xooker or you shall have the right to join in or participate in any arbitration proceeding arising under this Agreement, and therefore the arbitrators will not be authorized to permit class actions or to permit any person or entity to be involved in or named a party to any arbitration proceeding brought by either party under this Agreement.