Terms & Conditions

TERMS & CONDITIONS

(Updated December 21, 2022)

1. Overview. Xooker is a mobile marketing service where subscribers can utilize a mobile first marketing platform to advertise send messages to market their respective business interest (the “Service”). The provisions set forth in this Merchant Agreement (the “Agreement”), shall govern Merchant’s use of the mobile system provided through Xooker and any of its related companies. This Agreement represents an agreement between you, your company and Xooker, and governs your use of the mobile system as well as the service. Use of the system and the service is conditioned on your acceptance without modification of the terms, conditions and notices contained in this Agreement, the schedules thereto, located at www.xooker.com, the Terms and Conditions found under Section “License Agreement” at www.xooker.com, and the Xooker privacy policy located at www.xooker.com (The “Privacy Policy”). If client does not agree to be bound by (or cannot comply with) any of the terms and conditions of this Agreement, do not use or attempt to use the mobile system provided by Xooker or any of its affiliates, or any aspect of the service in any manner. By subscribing and continuing to use the services, you agree to the terms outlined in this Agreement. Xooker reserves the right to update and change, from time to time, these terms. The Terms and Conditions set forth herein and conditions found on Xooker.com under Section “License Agreement” constitutes the full and complete Agreement between you and Xooker,and supersedes any prior understanding or agreement between the parties, whether oral or in writing, regarding the topics herein. By using the Xooker website mobile platform, messaging services, support services, any software, or any other products or services of Xooker or any of its affiliates, you agree to be bound by the terms of this Agreement and any documents incorporated by reference. You can always find the most recent version of these terms on the Xooker website or by contacting the Xooker corporate office.
2. General Terms. Merchant desires to offer discounted products/services/tickets to consumers (the “Promotion”) through the use of a Certificate (“Certificate”) which will be placed on the “Xooker Deal Marketplace” page of Xooker’s website located at Xooker.com (“xooker.com Website”) and may be available at other websites (collectively, the xookerdealmarketplace.com Website and those other websites will be referred to as the “Websites”) or through other means of marketing. Consumers will be allowed to commit to the purchase of a Certificate using a credit card at a price set forth on each Certificate (the “Paid Amount”), which Certificate will allow the consumer to purchase a face value (the “Promotional Value”) amount, which may exceed the Paid Amount. Merchant may specify an expiration date (“Promotional Expiration Date”) for the Promotional Value to the extent permitted by applicable laws, rules, regulations and orders (“Applicable Law”). However, to the extent the Certificate is not redeemed by the Promotional Expiration Date, Merchant shall continue to allow the Certificate to be redeemed for the Paid Amount for a period that is not less than five (5) years from the date of issuance of the Certificate, unless a longer period is required by Applicable Law. Merchant shall not charge or impose any service charges, dormancy fees or other fees in connection with the redemption of the Certificates, except for sales and local taxes as required by Applicable Law.
3. Fees and Payment of Fees. Fees and Payment of Fees: All monthly service fees are due on the first of each calendar month. Payment for the Video Package and/or any a la carte purchases, are due immediately upon purchase. Credit Card or e‐check processing for regular monthly service fees will be done on or around the first of each calendar month. If any attempt to collect payment is unsuccessful, subsequent attempts will be made on or around the 5th, 10th and 15th day of calendar month. All accounts are subject to state and local taxes (if applicable), a $2.95 Monthly Premium Service Access Fee and a $1.95 Monthly Surcharge. Xooker reserves the right to charge a $10.00 administrative fee against the credit card or e‐check account for each failed attempt to process payment via credit card or e‐check.
4. Payment Terms. Xooker will pay Merchant the percentage of Net Revenues for the Promotion set forth in Schedule B Section 1 of this Agreement, located at Xooker.com. Xooker may use Paypal, or any other payment processor selected by Xooker (“Payment Processor”) to collect and disburse Net Revenues. “Net Revenues” is defined as the total credit card revenue received for the Promotion minus any returns, refunds or credits made within 60 days. All subsequent charge-backs and fees related to credit card charges successfully contested by a consumer will be incurred by Xooker, except that Xooker reserves the right to charge back against Merchant’s account or separately invoice Merchant for the amount of any refunds or credits issued to consumers because of their dissatisfaction with Merchant’s products or services, Merchant’s failure to honor the Certificates or any breach by Merchant of its representation and warranties in this Agreement.
BY USING A CREDIT CARD or ACH, YOU HEREBY UNCONDITIONALLY WAIVE ANY AND ALL CHARGEBACK RIGHTS YOU MAY HAVE. If you deliberately or inadvertently issue a chargeback to your credit card or ACH, you shall pay Xooker a $50 processing and collection fee. Any Service Fees that are more than sixty (60) days delinquent shall accrue interest at a rate of 1.5% per month, or the maximum rate allowed by law, if less. Additionally, Xooker reserves the right to send any delinquent Service Fees to a collection agency.
In the event Xooker is required to investigate, review, or institute any action including, but not limited to, litigation in collection efforts at trial or appellate proceedings, Xooker shall be entitled to recover its attorneys’ fees and costs expended, in addition to any other remedies.
5. Certificate Publication. Xooker will publish the offer for the certificates on the Xooker app and xooker.com Website in accordance with the xooker.com Website’s Terms of Service and the terms of this Agreement. Xooker and its agents may change the formatting, make corrections, remove, or modify the images, photographs, arts, or other content of an offer, including but not limited to the offer terms provided that any such change or modification would not alter the integrity or the meaning of an offer. In addition, Xooker may further distribute the offer for publication on other Websites at the sole discretion of Xooker in accordance with the terms of service of such other Websites. Certificates will run on the Website(s) for a period of at least 6 months unless otherwise specified in Section 5 of this Agreement (the “Run Time”) and will begin at 12:00 a.m. on the first day of the Run Time (the “Start Date”). Xooker has sole discretion as to the Start Date but agrees to notify the Merchant of the Start Date not less than 3 business days prior to the Start Date. If a maximum number of Certificates available for purchase has been set forth in Section 5 of this Agreement (the “Maximum Number”) and the Maximum Number has been met, then Certificate sales for that Promotion will be stopped; provided, however, that Merchant may, with Xooker’s written permission, increase the Maximum Number during the Run Time. In addition, Xooker reserves the right to discontinue publishing a Certificate for any reason in its sole discretion. All Promotions and Certificates require the prior written approval by Xooker before they will be offered on any of the Websites.
6. Certificate Activation. Xooker will activate the Certificate, charge the consumer’s credit card the applicable amount and deliver the Certificate to the consumer electronically when each consumer commits to purchase a Certificate Xooker, or its agents, service providers or assigns, is responsible for charging the consumer’s credit card in connection with the purchase of the Certificate.
7. Certificate Redemption. Merchant will honor and redeem Certificates starting on the date of activation. Unless otherwise specified on the Certificate or as required by Applicable Law, Certificates may not be used multiple times and must be used in a single transaction. If a consumer redeems a Certificate for less than the Promotional Value, Merchant is not responsible for paying the consumer the difference between the Promotional Value and the amount redeemed except as required by Applicable Law. Merchant is solely responsible for fulfilling any and all redemption obligations and for customer service issues associated with the Certificates and for all services and products to be provided in redemption of the Certificates. Merchant is not permitted to apply any other conditions to, or restrictions on, the use or redemption of the Certificates other than those that are listed on the Certificates themselves or those general conditions/restrictions set forth in the xooker.com Terms of Service listed on the xooker.com Website.
8. Coupon Sales. Merchant authorizes Xooker to offer, sell and distribute coupons (“Coupons”), in accordance with this Agreement. Merchant acknowledges that Xooker may terminate the publication or promotion of the Coupon at any time.
9. License. Xooker is hereby authorized and shall have the worldwide right to offer, sell, distribute and transmit Certificates subject to the terms and conditions of this Agreement and the xooker.com Terms of Service listed on the xooker.com Website and in accordance with the terms of other Websites on which Xooker may offer the Certificates. Certificates may be published on the xooker.com Website, on other Websites, or through mobile applications and e-mails and other forms of media, commencing or about the applicable Start Date and offered to sale to purchasers pursuant to the then applicable xooker.com Terms of Service. Merchant grants to Xooker a non-exclusive worldwide license and right, and right to sublicense others, to use, reproduce, license, display, distribute and transmit the Advertiser’s name, logo and any trademarks (collectively “Merchant Marks”) and any photographs, graphics, artwork, text and other content provided by Merchant for use on or in connection with the Certificates (“Merchant Content”) in connection with the marketing, promotion, sale, publication, transmission and distribution of the Certificates, in any and all media or formats, whether now known or hereafter developed, in which such Certificates are marketed, promoted, transmitted, sold, or distributed, including but not limited to, on the Xooker’s xooker.com Website, on other Web- sites or through mobile applications or email.
10. Taxes/Compliance with Laws. Merchant is solely responsible for the collection and remittance of any and all taxes associated with the purchase or redemption of the Certificates and for any escheat/unclaimed property obligations associated with the failure to redeem the Certificates. Merchant is further responsible for paying any and all income taxes associated with the sale of Certificates, except for taxes on Xooker’s income. To the extent required by any Applicable Law, Merchant shall be solely responsible for and agrees to report and pay over to the applicable local, state or federal governmental agency any unredeemed value of any Certificate issued under this Agreement. Merchant agrees to comply with any and all state and federal laws applicable to Certificates, gift cards, promotions, gift certificates as well as all other consumer protection laws. Merchant shall comply with xooker.com Terms of Service.
11. Use of Information. You agree that Xooker is free to use comments, information or ideas contained in any communication you may send to Xooker without compensation, acknowledgement, or payment to you for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products and services and creating, modifying or improving the Xooker Service or other products or services. You agree that Xooker is permitted to use your logo on its platform sites and or marketing material as an indication that your company or organization uses the Xooker service. You agree that all databases are the property of Xooker and therefore may not be removed, copied, exported, or altered. You may not make or distribute any copy of the database (electronically or otherwise), from one computer/system/device to another or from one system to another (over a network or otherwise).
12. Ownership. Xooker retains all rights, including any intellectual property rights, to the creative/artistic parts of any Certificates it creates for Merchant, except for the Merchant Marks. Merchant acknowledges and agrees that it may not use Xooker’s content in any other advertising medium without Xooker’s written consent.
13. Xooker Warranties. Xooker warrants that it will comply, and that it has required its agents and third-party processors involved in processing credit payments under this Agreement to comply, with all consumer credit card regulations in collecting the Paid Amount. Xooker does not warrant that the operation of the Websites will be uninterrupted or error-free, that the Certificates will have a specific placement on the Websites or that the offered Certificates will be purchased by consumers. Xooker does not warrant that the services offered through Xooker.com, including but not limited to any Certificates, shall be uninterrupted or error-free, or that any errors, omissions, or misplacements in the certificate will be corrected, or that certificates will result in any revenue or profit for Merchant. Except as expressly stated herein, neither party makes any representation or warranties, whether express or implied, including without limitation any warranty of merchantability, fitness for any purpose, or non-infringement.
14. Merchant Warranties. In addition to the representations and warranties set forth in the Agreement, Merchant warrants that: (a) the terms and conditions on the Certificate (and the products/services) do not violate any federal or state or local laws or regulations, including but not limited to, any Applicable Laws governing Certificates, gift cards, coupons, and/or gift certificates ; (b) that Merchant has the right to use the Merchant Content that is on the Certificate and the Merchant Marks and the Merchant Content do not and will not violate or infringe any copyright, trademark, trade secret, patent or other intellectual property right or any right of privacy or publicity of any third party or any Applicable Laws; (c) that Merchant has the legal right to enter into this Agreement and related Promotion; and (d) that neither the advertising related to the Certificate nor the products/services offered pursuant to the Certificate are illegal, false or deceptive or violate laws related to any unfair competition. ]
15. Production Errors. Xooker and Merchant agree promptly to notify each other in the event either becomes aware of any error in the content, publication, or promotion of the Certificate and to work together to develop a reasonable solution.
16. Force Majeure. Xooker shall not be liable for any failure or delay in performing its obligations hereunder, which such failure or delay is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, insurrection, terrorism, strike, failure or downtime of any telecommunications line and/or unavailability of any telecommunications facilities, power failure, governmental restrictions, any court order, compliance with any law, regulation, or order of any governmental authority, or any other cause beyond the reasonable control of Xooker. In addition, Xooker shall be so excused in the event it is unable to acquire from its usual sources and on terms it deems to be reasonable, any material necessary for the performance of Services.
17. Indemnification. Merchant and Xooker agree to indemnify and hold each other harmless from any breach of their respective obligations, representations, and warranties under this Agreement. Merchant further agrees to indemnify and hold Xooker and its parent, subsidiary and affiliated companies, licensees and distributors, and each of their officers, directors, employees and agents, co branders or other partners and representatives harmless from any liabilities, losses, claims, suits, damages, costs or expenses, including attorneys’ fees or court costs, arising out of the Certificate content or Promotion including, without limitation, any claim related to unfair competition, infringement of intellectual property rights, defamation or those arising out of the Merchant Marks, the Merchant Content or the products/ser- vices provided by Merchant to consumers, any claim for state or local sales or use tax obligations (“Taxes”) arising from the sale and subsequent redemption of a Certificate, or any claim by any local, state or federal governmental entity for unredeemed Certificates or the unredeemed cash values of Certificates or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest (“Abandoned Property Claims”). Other than as described above, in no event shall either party be liable or obligated to the other party or any third party for any damages of any kind, and in no circumstance shall Xooker’s aggregate liability to Merchant for any claims arising out of or relating to this Agreement exceed an amount equal to the total amounts paid hereunder. This provision shall apply to the maximum extent permitted by law and notwithstanding the failure of any limited remedy.
18. Confidentiality/Assignment. Merchant agrees to keep the payment terms of this Agreement confidential and shall not disclose those terms to any third party who does not have a legitimate need to know, and only after obtaining said third party’s assurances that they will keep the payment terms confidential. Merchant may not assign its rights and obligations under this Agreement, in whole or in part, whether by operation of law or otherwise. For purposes of this Agreement, an assignment shall include the sale of fifty-one percent (51%) or more of Merchant’s stock or assets. Any such assignment by Merchant is null and void unless the prior written consent of Xooker is received, in which instance all rights and obligations shall inure to any successors of Merchant. Xooker may assign any or all of its obligations under this Agreement in its sole discretion.
19. Termination. If Client wants to terminate the Agreement immediately, Xooker will charge an early cancellation fee, not less than 50% of the total monthly fees, in addition to any other remedy available to Xooker in law and equity. In the event that either party terminates the Agreement before the end of the Term, Client agrees to pay all fees due to Xooker through the date of termination within five (5) days after the date of termination.
Subject to prior agreement in writing this Agreement shall be renewed automatically, after expiration of the original term, on a continuing Quarterly basis, unless the Party wishing not to renew this Agreement provides the other Party with written notice of its election not to renew (“Termination Election Notice”) at least thirty (30) days prior to expiration of the then-current Term.
The provisions contained herein shall survive termination of this Agreement. Upon Service termination your right to use the Service stops immediately. ONCE THE SERVICE IS CANCELLED OR SUSPENDED, ANY DATA YOU HAVE STORED ON THE PORTAL AND/OR THE SERVICE MAY NOT BE RETRIEVED LATER. MONTH TO MONTH SERVICE AGREEMENTS MUST HAVE A TEN (10) DAY NOTICE OF TERMINATION. Xooker reserves the right to terminate this Agreement and your use of the Portal and Service at any time. In no event shall Xooker be obligated to refund to you the reasonable value of any unused ads previously purchased by you, the client.
20. Dispute Resolution and Arbitration. The parties agrees that any dispute, claim, or controversy arising out of or relating in any way to this Agreement, the Certificates, and this Arbitration Provision (collectively “Disputes”), shall be determined by binding arbitration, instead of in courts of general jurisdiction (meaning that the parties are waiving their right to a jury trial or trial before a judge in a public court), except that either party may seek injunctive or declaratory relief in a court of competent jurisdiction located in the City and County of Lexington, Kentucky. The parties agree that, by agreeing to this Arbitration Provision, the U.S. Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision, and that each party is waiving the right to a trial by jury or to participate in a class action. This Arbitration Provision shall survive termination of this Agreement. The arbitration will be governed by the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). All issues are for the arbitrator to decide, including issues relating to the scope, interpretation, and enforceability of this Arbitration Provision. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement. The arbitration shall take place before a single neutral arbitrator in Lexington, Kentucky. THE PARTIES EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both parties agree otherwise, the arbitrator may not consolidate more than one person’s claims with that party’s claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Arbitration Provision shall be null and void.
21. Miscellaneous. Any advertising under this Agreement shall not fulfill any advertising commitments under any other agreement between the parties. This Agreement shall be governed by the laws of the State of Kentucky without giving effect to any choice-of-law or conflict-of-law rules (whether of the state of Kentucky or any other jurisdiction) which would cause the application of the laws of any jurisdiction other than the state of Kentucky. All representations, warranties and covenants (including, but not limited to the indemnification obligations) contained in this Agreement shall survive termination of this Agreement.
22. Enforceability. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. Xooker’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the conduct between the parties nor trade practices shall act to modify any provision of this Agreement. You acknowledge that Xooker and you are independent contractors under this Agreement, and nothing herein shall be construed to create a partnership, joint venture, agency or employment relationship. Xooker may assign its rights and duties under this Agreement to any party at any time without notice to you, but you may not assign your rights and obligations under any circumstances. You may not amend this Agreement in any manner without Xooker’s express prior written approval.
23. Contact Us. If you have any questions about this Agreement, the content on Xooker.com and/or use of the Xooker Service, please contact us at: 844-523-9487.

Website Development Agreement Terms & Conditions:

(Updated May 5, 2023)
Acceptance
It is not necessary for any Client or User to have signed an acceptance of these terms and conditions for them to apply. If a Client accepts a quote and/or signs the Website Development Agreement, then the Client will be deemed to have satisfied themselves as to the terms applying and have accepted these terms and conditions in full. Please read these terms and conditions carefully. Any purchase or use of our services implies that you have read and accepted our terms and conditions.
Services
These Terms and Conditions, together with the Disclaimers listed below, govern Xooker’s performance of the services set forth on the Website Development Agreement accepted by the Client. All defined terms herein shall have the meanings ascribed to them in the Website Development Agreement, except as expressly defined herein.
Failure to Provide Required Website Content
If progress cannot be made with your website because we have not been provided the required information in the agreed time frame, and we are delayed as result, we reserve the right to begin billing of monthly service fees no later than 60 days from the effective date of the agreement. If Client is not on a monthly fee plan, then the remaining balance can be required to be paid by Client to Xooker at Xooker’s sole discretion. If your project involves Search Engine Optimization, we need the text content for your site in advance (or informed in writing that we need to create) so that the SEO can be planned and completed efficiently. If you agree to provide us with the required information and subsequently fail to do so within 5 working days of project commencement, we reserve the right to close the project and the balance remaining becomes payable immediately.
Payment
BY USING A CREDIT CARD or ACH, YOU HEREBY UNCONDITIONALLY WAIVE ANY AND ALL CHARGEBACK RIGHTS YOU MAY HAVE. If you deliberately or inadvertently issue a chargeback to your credit card or ACH, you shall pay Xooker a $50 processing and collection fee. Any Service Fees that are more than sixty (60) days delinquent shall accrue interest at a rate of 1.5% per month, or the maximum rate allowed by law, if less. Additionally, Xooker reserves the right to send any delinquent Service Fees to a collection agency.

In the event Xooker is required to investigate, review, or institute any action including, but not limited to, litigation in collection efforts at trial or appellate proceedings, Xooker shall be entitled to recover its attorneys’ fees and costs expended, in addition to any other remedies.
Term
If Client wants to terminate the Agreement immediately, Xooker will charge an early cancellation fee, not less than 50% of the total monthly fees, in addition to any other remedy available to Xooker in law and equity. In the event that either party terminates the Agreement before the end of the Term, Client agrees to pay all fees due to Xooker through the date of termination within five (5) days after the date of termination.
Exclusivity
Xooker does not extend exclusivity to Clients for Xooker’s services. The Client acknowledges and agrees that Xooker is free to provide its services to any customer without limitation, regardless of whether any other such customer is competitive with the Client.

Representations & Warranties
a. By Client. Client represents, warrants, covenants and agrees that: (1) Client is duly organized, validly existing and in good standing, and is duly qualified and licensed to do business and to carry out its obligations under its Agreement, and that the execution, delivery and performance of its Agreement does not violate any existing agreement to which Client is a party or by which Client is bound; (2) Client is the owner, or authorized licensee of, and has and shall have all right, title and interest in and to Client’s content contained on its website; (3) all content on Client’s website or otherwise provided or made available to Xooker in connection with the performance of its Agreement (“Client Content”) does not infringe or misappropriate any patent, trademark, copyright, trade secret or other proprietary right of any third party; (4) Client has obtained all authorizations and consents in connection with the Client Content necessary for Xooker to perform its obligations and exercise its rights hereunder; (5) Client’s use of the Services is in compliance with all laws, rules and regulations, including all privacy and marketing laws, rules, and regulations including the Telephone Consumer Protection Act; and (6) Client’s use of the Services will not, infringe any trade name, trademark, trade secret, copyright or other rights of any third party.

b. By Xooker. Xooker represents, warrants, covenants and agrees that: (1) it is duly organized, validly existing and in good standing, and is duly qualified and licensed to do business and to carry out its obligations under the Agreement, and that the execution, delivery and performance of the Agreement does not violate any existing agreement to which it is a party or by which it is bound; (2) Xooker will provide the Services in compliance with all laws, rules and regulations, and such Services do not, and will not, infringe any trade name, trademark, trade secret, copyright or other rights of any third party. Xooker’s failure to perform any term or condition of the Agreement as a result of conditions beyond its reasonable control such as, but not limited to, war, strikes, fires, floods, acts of God, governmental restrictions, or damage or destruction (unless caused by Xooker) of any computer hardware, network facilities or servers, shall not be deemed a breach of the Agreement.

Disclaimers
Client acknowledges and agrees that the Services provided under the Agreement are expressly subject to, and limited by, the disclaimers set forth below, attached hereto and incorporated herein by reference, and that Xooker shall have no liability for any and all losses, liabilities, claims, costs, damages, and expenses that Client may incur as a result of any circumstances described in the Disclaimers, or any other acts of third parties. EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND XOOKER HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES.

Work Made For Hire; License By Client To Xooker
a. To the extent that Xooker is not utilizing third party or open-source property or material, any development or modification of Client Content by Xooker under the Agreement, including any website screens, graphics, text or other website materials, programming code or documentation that is part of or related to such website materials, if any, to the extent uniquely related to the Client Content, shall be considered a “work for hire” under the United States copyright laws, and the copyright in and to such material shall belong to Client once payment for services by Xooker have been paid in full.
b. Client hereby grants Xooker a worldwide, perpetual, irrevocable, royalty-free license to use and have others use for any purpose any development or modification by Xooker under the Agreement, including any skills developed or any improvements made regardless of their origin, including as suggestions or feedback from Client.

Limitation of Liabilities and Remedy
Customer agrees that the aggregate liability of Xooker and its members, officers, employees and agents to Client for any action, damage, claim, liability, cost, expense or loss in any way arising out of or related to the Agreement shall be limited to the fees paid or required to be paid by the Customer pursuant to Section 3 of the Website Development Agreement in the one year period immediately preceding the date the claim arose. In no event shall Xooker or its members, officers, employees, or agents be liable to Client or to Client’s stockholders, members, partners, directors, officers, employees or agents for any loss or corruption of data or any consequential, exemplary, special, indirect, incidental or punitive damages, including, without limitation, arising from lost profits, lost business, unavailability or performance of the Services, or opportunity costs.

Indemnification
Each party agrees to indemnify and hold harmless the other party and its stockholders, members, partners, directors, officers, employees and agents (collectively, the “Indemnified Parties”) from and against, and will promptly pay upon demand to the Indemnified Party, the amount of, any and all losses, liabilities, claims, costs (including, without limitation, costs of investigation and defense), damages, and expenses (including, without limitation, reasonable attorney’s fees) which an Indemnified Party may sustain resulting from, arising out of, relating to or caused by (a) any breach, or any action, claim, or demand alleging a breach, by party providing indemnification hereunder (the “Indemnifying Party”) of any covenant or other agreement contained in this Agreement and (b) any breach, or any action, claim, or demand alleging a breach, of any representation or warranty made by the Indemnifying Party in the Agreement. The remedies provided in this section are not exclusive of and do not limit any other remedies that may be available to any Indemnified Party.

Notices
a.Notices. All notices, requests, consents, demands or other communications given under the Agreement shall be in writing and shall be deemed duly given and received (a) upon personal delivery to the party to whom it is directed; (b) three days after being sent by certified or registered mail return receipt requested, to the party to whom it is directed, postage and charges pre-paid; (c) one business day after being sent by express overnight delivery by a national carrier to the party to whom it is directed; or (d) upon actual delivery followed by the sending of an acknowledgment of receipt if sent by electronic mail or any other electronic means (electronic mail or any other electronic means shall constitute a writing for purposes of the Agreement). All notices, requests, consents, demands and other communications shall be addressed to the addresses set forth below (which addresses may be changed from time to time by either party by providing prior written notice to the other in the manner set forth above):

If to Client, to the name and contact information set forth on the Website Development Agreement or otherwise provided to Xooker by Client. If to Xooker:

Xooker, LLC
Attn: Kyle Harris
2100 Southview Drive
Lexington, KY 40503
(859) 523-9032 ext. 154
kharris@Xooker.com

b. Confidential Information. “Confidential Information” means the trade secrets and other confidential information of Client which is not generally known to the public, or which is generated or collected by or utilized in the operations of the Client and other information that, due to the nature of the information or circumstances of disclosure, a party would understand it to be confidential information. Xooker shall take commercially reasonable efforts to protect Client’s Confidential Information and shall not, except as reasonably necessary to provide the services or as required by statute, regulation, or any legal process, disclose any of Client’s Confidential Information related to this Agreement, without the express prior written consent of an authorized representative of Client.
c. Severability. If any provision of the Agreement is held invalid, such provision shall be restated to reflect, as nearly as possible, the original intention in accordance with applicable law and the remainder of the Agreement shall remain in full force.
d. Waiver. The failure of a party to enforce any provision of the Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with that provision or any other provision of the Agreement.
e. Applicable Law and Forum. All questions concerning the construction, validity, and interpretation of the Agreement and the performance of the obligations imposed by the Agreement shall be governed by the laws of the state of Kentucky, without regard to its conflicts of law provisions. Any suit, action or proceeding against either party to the Agreement brought by the other party with regard to the Agreement, or the rights and obligations of the parties under the Agreement, shall be brought in the courts located in Fayette County, Kentucky. The parties hereby irrevocably consent to the jurisdiction of the aforementioned courts. In addition, and notwithstanding the foregoing, each of Client and Xooker irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
f. Parties in Interest. The Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties to the Agreement and their respective successors, heirs, legatees, personal representatives and permitted assigns. No assignment, delegation or other conveyance of the Agreement or of any rights or obligations hereunder (by operation of law or otherwise) may be made by Client without the prior written consent of Xooker. Xooker shall have the right to subcontract the performance of any of the Services hereunder to third parties.
g. Headings. The headings and other captions in the Agreement are for convenience and reference only and shall not be used in interpreting, construing or enforcing any of the provisions of the Agreement. Common nouns and pronouns will be deemed to refer to the masculine, feminine, neuter, singular, and plural, as the context may require.
h. Agreement Supersedes. The Agreement supersedes any prior written or oral discussions, agreements and/or undertakings of any kind and nature between the parties with respect to the subject matter of the Agreement. Except as provided or contemplated by the Agreement, the Agreement shall not be amended except by a writing signed by both parties. The recitals to the Agreement are deemed a part of and are incorporated by reference into the Agreement.
i. General Provisions. The parties to the Agreement are independent contractors and an agency, joint venture, partnership, fiduciary relationship, or any other relationship other than in the nature of independent contractor, shall not arise from the Agreement, and neither party has the right or authority to act for, or on behalf of, the other party. The provisions of the Agreement are not for the benefit of any third party. Provisions of the Agreement that are intended to survive the Agreement shall survive.
j. WAIVER OF JURY TRIAL. THE PARTIES HEREBY ACKNOWLEDGE THAT ANY CONTROVERSY THAT MAY ARISE UNDER THE AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
k. Order of Precedence. In the event of a conflict between these Terms and Conditions, the Website Development Agreement, and any Service Description, the following is the order of precedence: (1) Website Development Agreement; (2) Terms and Conditions; and (3) Service Descriptions.

SEO DISCLAIMERS
a. Xooker has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future. Client’s website may be excluded from any directory, platform, or search engine at any time at the sole discretion of the search engine or directory.
b. Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, Xooker does not guarantee #1 positions or consistent first page rankings for any particular keyword, phrase or search term.
c. If you require prior approval, please be aware that if there are delays for approval on your part, your results may be hindered and Xooker will not be responsible for any such delay. In the event that Client has the right to approve any content (“Website Content”) submitted by Xooker prior to posting on Client’s website, Client acknowledges and agrees that Xooker’s delivery of the Website Content to Client for approval shall constitute the full satisfaction of its obligation to create and submit such Website Content, regardless of whether Client provides its approval and the Website Content is posted on Client’s website. Xooker shall not be liable for any Website Content approved by Client.
d. Xooker policy is to never export or give administrative access to anyone from our ads account. We have developed our keyword list, test ad copy, and developed a strategy specific for client success. We are happy to share anything else you need (copies of reports, analytics access, etc). Our ad campaigns including keyword lists, negative keyword lists, and management strategies are proprietary. Because of this, we do not grant access to any ad campaigns.
e. Xooker is not responsible for changes made to the Client’s website by other parties, including those that adversely affect the search engine rankings of Client’s website.
f. Xooker is not responsible for Client overwriting search engine optimization work to Client’s site (e.g., Client/webmaster uploading work over work already provided/optimized). Client will be charged an additional fee for reconstructing content.
g. Any costs billed to the client by their current hosting provider, support channel, or third-party is the responsibility of the client, unless explicitly informed otherwise in writing.

SOCIAL MEDIA DISCLAIMERS
a. Xooker has no control over the policies of social media platforms with respect to the type of sites and/or content that they accept now or in the future. Client’s content may be excluded or deleted from any social media platform at any time at the sole discretion of the social media platform.
b. Xooker has no control over the changes made by social media platforms to Client’s social media profiles. Client’s social media profiles may be excluded, disconnected or deleted at any time at the sole discretion of the social media platform.
c. Xooker is not responsible for changes made to the Client’s content by other parties.
d. Xooker is not responsible for Client changing or deleting social media content that is a part of ad spend. Client will be charged an additional fee for reconstructing content or ad spend.
e. Xooker has no control over the changes made to Client’s social media platform information by said social media platform.
f. Xooker is not responsible for photo or video content creation unless Client has subscribed for those services through Xooker. Otherwise we will use content provided by our clients and their vendors, and/or stock photography.
g. Xooker has no control over the verification and privacy settings of an account that has been locked by social media platforms. Xooker will use commercially reasonable efforts to work with Client to regain access, but it is understood that Xooker will not be able to fulfill their agreement for said posts if there is delay in contact from Client.

WEB DESIGN DISCLAIMERS
a. Xooker has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future. A client’s website may be excluded from any directory or search engine at any time at the sole discretion of the search engine or directory.
b. Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, Xooker does not guarantee #1 positions or consistent first page rankings for any particular keyword, phrase or search term.
c. The following services are not included:
i. Graphic Design: We have partner companies with talented in-house graphic designers, but all logo design, identity work and print collateral are quoted at separate prices, and are not included in web proposals.
ii. Content Creation: Our web developers rely on our clients to generate the content needed to build a website. Unless mutually agreed by Xooker and Client, our developers do not supply content/copy.
iii. Maintenance: Maintenance and future updates are not included and will be billed at a rate of $125/hour.
iv. Email: Email maintenance and configuration is the sole responsibility of Client.
v. E-commerce: Xooker is not responsible for updating inventory, processing orders, troubleshooting payments, or any other matters related to Client’s e-commerce operations, if any.
vi. Third-party Integrations: Xooker cannot guaranty function or upkeep of any third-party applications that have been integrated into the Client’s website, including, without limitation, schedulers, calculators, and third party point of sale platforms.
d. Xooker is not responsible for changes made to the Client’s website by other parties that adversely affect the Client’s website.
e. Xooker strives to make websites easily accessible to everyone; however, we do not guarantee compliance with WCAG 2.0 or other accessibility standards. Should you require WCAG 2.0 compliance now or in the future, your website may require significant changes or a complete redesign.
f. Client is solely responsible for compliance with any and all laws and regulations that apply to Client, Client’s activities (including through the Services), or Client’s industry, including all laws and regulations regarding the collection, disclosure, maintenance, protection, storage, transmission, use and disposition of any data from clients or other visitors to Client’s website, and for providing all appropriate disclosures and obtaining all appropriate consents and authorizations. Xooker will not be responsible for providing, implementing, or configuring the Services in a manner that complies with any such laws or regulations. In no event will Xooker, its business partners, licensors, services providers, agents, or suppliers be liable for any claim or action arising from or related to Xooker’s failure to comply with any applicable laws or regulations. Without limiting the generality of the foregoing, Client agrees that it is solely responsible for its own compliance with privacy and marketing laws and regulations, including the Telephone Consumer Protection Act.

HOSTING SERVICES DISCLAIMERS
a. Xooker’s hosting services may be provided through a third-party hosting provider, such as A2 Hosting or Amazon Web Services (“Hosting Providers”). Xooker is not responsible and will in no event be liable for, and you hereby expressly hold Xooker harmless from all acts or omissions of the Hosting Provider.
b. Xooker may from time to time make material enhancements or changes to the hosting services, including changing the Hosting Provider. In the event of such enhancements or changes, the hosting services will include at least the functionality or quality of hosting services that Client previously received and shall continue to comply with all of the requirements of the Agreement.
c. Hosting services are provided subject to the Hosting Provider’s service descriptions and policies, including any acceptable use policy. Customer shall fully comply with the Hosting Provider’s acceptable use policy and all other Hosting Provider policies and procedures applicable to the services.
d. If Xooker is not providing hosting services then Client is solely responsible for backing up all data and information provided in connection with the hosting services. Xooker shall not be responsible for backing up or otherwise storing any data or information of any kind relating to the hosting services. Hosted files are non-transferrable.
e. Client acknowledges that the Hosting Provider controls the servers on which the hosting services are provided. Xooker is not responsible for, and Client shall hold Xooker harmless from all damages arising from, the security of the website or any data or information contained therein. Client agrees that (i) Client and Xooker rely entirely upon the security measures taken by the Hosting Provider; and (ii) Client has reviewed the Hosting Provider’s security measures and confirmed they are acceptable for Client’s purposes and use of the hosting services.
f. The applicable monthly hosting fee will apply throughout the life of the website. (This pays for Customer’s space on the web, but excludes the cost of an SSL certificate for added security and SEO friendliness.) Notwithstanding any pricing on the Services Agreement to the contrary, Xooker shall pass through to Client, and Client shall pay in a manner consistent with the Agreement, all fees, costs, and charges imposed by the Hosting Provider in connection with the hosting services. Client specifically acknowledges and agrees that the Hosting Provider prices or costs may change from time-to-time, and Client hereby expressly agrees to all such pricing changes.
g. In the event that Client fails to pay the hosting services fee, violates any Hosting Provider policy or rule, or engages in or permits any act or omission that Xooker determines could materially impact its relationship with the Hosting Provider or its ability to provide hosting services for other Xooker customers, Xooker reserves the right, at its sole and absolute discretion, to terminate the hosting services.

License Agreement

(Acceptable Use Policy)

Last Updated 9/24/2019

Terms of Use & License Acceptance

By downloading the Xooker Application, you agree to be bound by the terms and conditions in this Xooker Terms of Use (“Terms”) and Privacy Policy which can be viewed at www.xooker.com. This Agreement applies to your access to, and use of, the content, documentation, code, data and related materials made available by Xooker, LLC (“Xooker”) to you (collectively, the “Content”), including through the use of the Xooker’s mobile marketing services (the Content together with “mobile marketing services” collectively is “Xooker Services”). Please review carefully before downloading the application.

1. ABOUT THE APPLICATION

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.

2. APPLICATION OWNERSHIP

The App, any content on the App, and the infrastructure used to provide the Application are proprietary to us, our affiliates, Merchants and other content providers. By using the App and accepting these Terms of Use: (a) Xooker grants you a limited, personal, nontransferable, nonexclusive, revocable license to use the App pursuant to these Terms of Use and to any additional terms and policies set forth by Xooker; and (b) you agree not to reproduce, distribute, create derivative works from, publicly display, publicly perform, license, sell or re-sell any content, software, products or services obtained from or through the App without the express permission of Xooker.

3. USERS

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.

4. GRANT OF LICENSE

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.

5. CREATION OF ACCOUNT, USE OF SITE AND INFORMATION

By creating an account, you agree that: you are 18 years or older; you have read the terms and conditions; you are able to create a legally binding obligation; your use of the Site will comply with these Terms of Use & License; you have the right to provide any and all information you submit to the Site, and all such information is accurate, true, current and complete. You will also be given the option to receive push notifications to receive notifications about goods and services on the Site. You have the option to opt out of receiving such notifications.

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. 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 may also aggregate the information of all users, de-identify it and provide that information to Xooker partners or affiliates for the purpose of creating statistics on the number of users, their geographic location and other statistics on how the Application is used. With respect to the de-identified information collected and used by Xooker, Xooker will comply with its Privacy Policy, which can be found at www.xooker.com.

6. CONDUCT

All conduct on the Site must comply with these Terms of Use & License. To the extent your conduct, in our sole discretion, restricts or inhibits any other user from using or enjoying any part of the Site, we may limit or terminate your privileges on the Site and seek other remedies, including, without limitation, cancellation of your account.

You agree NOT to do the following while using the Application:

Use the Application for illegal or unauthorized uses;

Impersonate any person or entity;

“Stalk” or harass other users or persons;

Submit purposely inaccurate, fraudulent or false information:

Infringe any patent, trademark, trade secret, service mark, copyright, or other intellectual property right of another person;

Access or use the account of another user without permission;

Solicit, spam or otherwise advertise to users and/or businesses using our content or the Application;

Distribute unsolicited or unauthorized advertising, surveys, contests, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or other messages for any purposes;

Distribute computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;

Scan or test the security or configuration of the Site or attempt to breach security or authentication measures;

Interfere with, disrupt, or destroy the functionality or use of any features of the Application;

Interfere with, disrupt, or destroy the servers or networks connected to the Application, or disobey any rules or regulations applicable to such servers or networks;

“Hack” or access without permission our proprietary or confidential records, those of another user, or those of anyone else;

Violate any applicable law, rule, or regulation;

Decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Application;

Remove, circumvent, disable, damage or otherwise interfere with security-related features, or features that enforce limitations on use of, the Application; and/or Modify, copy, publish, license, sell, rent, lease, lend, transfer or otherwise commercialize any rights to the Application or our content.

We may at any time in our sole discretion (i) move, edit, delete, or destroy any materials that you provide or deliver; (ii) access, preserve, or disclose in accordance with our Privacy Policy any materials that you provide or deliver including information that may be collected from you from your web browser or mobile device; (iii) suspend or terminate your access to and use of the Application or any of its features in response to a breach of these Terms, or for any or no reason; or (iv) take any other action available at law in response to a breach of these Terms.

7. MODIFICATIONS TO THIS AGREEMENT

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.

8. MAINTENANCE

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.

9. TERMINATION

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.

10. LIMITATION OF LIABILITY AND RELEASE

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.

11. DISCLAIMER OF WARRANTIES

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.

12. CLAIMS AND GOVERNING LAW

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.

13. ARBITRATION AND WAIVER OF JURY TRIAL

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.