1. Acceptance of Terms 1.1. IMPORTANT: All CONTENTS ON THIS WEBSITE ("WEBSITE") INCLUDING SOFTWARE ("SOFTWARE") OR ONLINE OR OFFLINE PRODUCTS OR SERVICES (COLLECTIVELY, "THE SERVICE" OR "SERVICES") PROVIDED BY XLOON LLC (COLLECTIVELY, "XLOON," "WE" OR "US") YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS OF SERVICE ("TOS" OR "AGREEMENT"). If you do not agree you may not use the Services or Software. 1.2. The TOS may be updated by us from time to time without notice. You can review the most current version of the TOS at any time at www.xloon.com. This TOS governs your access to and use of any Xloon website, Xloon software, any order you place through a Xloon website, by telephone or any other means, and, as applicable, your use or attempted use of Xloon's products and Services (collectively, "Your Use"). 1.3. You warrant that if you use Xloon's Services you are more than 18 years of age, not subject to the Child Online Privacy Protection Act (which covers those under 13 years old), of legal age to enter into contractual agreements in the state, province, country, etc. in which you are present. 1.4. This Agreement includes a mandatory arbitration agreement, which means that you agree to submit any "claim" to binding individual arbitration rather than proceeding in court. If you want to opt-out of this mandatory arbitration agreement, the section below entitled "Pre-Dispute, Mandatory Binding Arbitration, and Class Action Waiver" describes the procedures you must follow to do so. The arbitration agreement also includes a class action waiver, which means that you agree to proceed with any claim individually and not as part of a class action. 1.5. You understand and agree that the Service may include certain communications from Xloon, such as service announcements and administrative messages, and that these communications are considered part of Xloon Services and that you may not be able to opt out of receiving them. Changes and features that augment or enhance the current Service shall be subject to the TOS. You understand and agree that the Service is provided "as is" and that Xloon assumes no responsibility for the timeliness, deletion, mis-delivery of or failure to store any user content or settings. You are responsible for obtaining access to the Service, which access may involve third-party fees (such as Internet serviceprovider charges). You are responsible for those fees, including fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service. 1.6 If Xloon is free for use, i.e. no fee charged to you, you are responsible for any loss, failure, leak, damage, or conflict during your use, you agree that Xloon has no any responsibility for these situations or occurring. 1.7. You may not access the Service for purposes of monitoring its performance, availability, or functionality, or for any other benchmarking or competitive purposes, without Xloon's prior written consent. You may not access the Service if you are a direct competitor of Xloon, except with Xloon's prior written consent. 1.8 You must follow and respect other vendors' rules and policies if you use their properties such as data, software, visual or unvisual files, etc. You are personally responsible for any loss, failure, leak, damage, or conflict, legal responsibilities, and you agree that Xloon has no any responsibility.
2. Your Account 2.1. In consideration of your use of the Service, you represent and warrant that (i) you are not barred from receiving services under the laws of the United States or any other applicable jurisdiction, (ii) your use of the Service does not violate any applicable law or regulation, and (iii) you access the Service through one or more humans. Accounts registered by bots" or other automated methods are not permitted. You also agree to: provide true, accurate, current and complete information about yourself as prompted by any Service registration form or otherwise ("Registration Data"); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. 2.2. If you provide any information that is untrue, inaccurate, not current or incomplete, or Xloon has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Xloon has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). 2.3. You will receive a password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Xloon of any unauthorized use of your password or account or any other breach of security; and (b) ensure that you exit from your account at the end of each session. Xloon cannot and will not be liable for any loss or damage arising from your failure to comply with the TOS, including, without limitation, this section.
3. Exclusions and Limitations 3.1. Some jurisdictions may not allow for (i) indemnification, and (ii) the exclusion of certain warranties or the limitation or exclusion of liability (including, without limitation, incidental or consequential damages). Accordingly, some of the provisions contained herein (including indemnification and the limitations of warranty or liability) may not apply to you. If you are unsure whether such exclusions and limitations apply, Xloon encourages you to seek legal counsel in your jurisdiction.
4. Content 4.1. "Content" means any and all information, data, code, video, images, text, documents or other materials of any type that you upload, post, email, transmit, submit or otherwise make available to or through the Service, regardless of whether it is publicly posted or privately transmitted. All Content is the sole responsibility of the person from whom such Content originated. This means that you, and not Xloon, are entirely responsible for all Content that you upload, post, email, transmit, submit or otherwise make available via the Service. Xloon does not control the Content posted via the Service and does not have access to such Content (except account-related information or unless authorized by you). As such, Xloon does not and cannot guarantee or endorse the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent, objectionable or illegal in your jurisdiction. Under no circumstances will Xloon be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or emailed, transmitted, submitted or otherwise made available via the Service. You agree to not use the Service to: 4.1.1. upload, post, email, transmit, submit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, under any applicable laws; 4.1.2. harm minors in any way; 4.1.3. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; 4.1.4. disguise the origin of any Content transmitted through the Service; 4.1.5. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any applicable law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); 4.1.6. upload, post, email, transmit or otherwise make available any Content that infringes any rights of any other party, including, without limitation, patent, trademark, trade secret, copyright or other proprietary rights; 4.1.7. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", or any other form of solicitation; 4.1.8. upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; 4.1.9. act in a manner that negatively affects other users' ability to use the Service; interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; 4.1.10. intentionally or unintentionally violate any applicable local, state, national or international law; 4.1.11. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act. 4.2. You acknowledge that Xloon does not pre-screen Content, but that Xloon and its designees shall have the right (but not the obligation) in their sole discretion to pre- screen, refuse, move or remove any Content that is available via the Service. Without limiting the foregoing, Xloon and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable or illegal as determined in Xloon's sole discretion. In no event shall Xloon or its designees have any liability or obligation to you in connection with exercising any rights contained in this section. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Xloon or submitted to Xloon. 4.3. You acknowledge, consent and agree that Xloon may access, preserve and disclose your account information and Content if required to do so by any applicable law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with any applicable legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of Xloon, its users and the public. If we receive a subpoena which requests disclosure of information contained in your account you agree that we may disclose any such requested information contained in the account. 4.4. You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. 4.5. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited. You will retain all right, title and interest in and to your Content and Xloon shall not claim ownership of your Content.
5. Special Admonitions for International Use 5.1. Recognizing the global nature of the Internet, you agree to comply with any and all applicable local, state, national or international laws and regulations regarding online conduct, acceptable Content and use of the Service. Specifically, you also agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country or jurisdiction in which you reside.
6. Indemnity by Customer 6.1. Customer shall defend Xloon, its Affiliates, and their employees, officers, and directors (together, the "Xloon Indemnified Parties") from and against third party claims, actions, and demands arising from allegations that Customer Data, unauthorized use of the Service by Customer or its End Users, or Xloon's processing of data pursuant to Customer's instructions infringes a third party's Intellectual Property Right or privacy right (each, a "Claim Against Xloon"), and Customer shall indemnify and hold the Xloon Indemnified Parties harmless against any damages, reasonable attorneys' fees, and costs finally awarded against Xloon Indemnified Parties as a result of, or for any amounts paid by the Xloon Indemnified Parties under a Customer- approved settlement of, a Claim Against Xloon.
7. No Resale of Service 7.1. You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service unless you otherwise have a prior written agreement with us which specifically grants you such right(s).
8. General Practices Regarding Use and Storage 8.1. You acknowledge that Xloon may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that Content will be retained by the Service, the maximum number of email messages that may be sent from or received by an account on the Service, the maximum size of any email message that may be sent from or received by an account on the Service, the maximum disk space that will be allotted on Xloon's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that Xloon has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted by the Service. You acknowledge that Xloon reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that Xloon reserves the right to modify these general practices and limits from time to time.
9. Modifications to Service 9.1. Xloon reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Xloon shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
10. Marketing 10.1. You agree to be identified as a customer of Xloon and you agree that Xloon may refer to you by name, trade name and trademark, if applicable, and may briefly describe your business in Xloon's marketing materials and Website. You hereby grant Xloon a fully-paid, irrevocable, perpetual, world-wide license to use your name and any of your trade names and trademarks solely in connection with the rights granted to Xloon pursuant to this marketing section. You may revoke this permission by notifying Xloon by email.
11. Termination and Cancellation 11.1. You agree that Xloon may terminate your Xloon account and access to the Service for any reason at any time, including but not limited to: (a) any breaches or violation of the TOS or other incorporated agreements or guidelines; (b) requests by law enforcement or other government agencies; (c) a request by you (self-initiated account deletions): (d) discontinuance or material modification to the Service (or any part thereof): (e) unexpected technical or security issues or problems; (f) extended periods of inactivity; (g) engagement by you in fraudulent or illegal activities; and/or (h) nonpayment of any fees owed by you in connection with the Service. All terminations for cause shall be made in Xloon's sole and absolute discretion and that Xloon shall not be liable to you or any third party for any termination of your account, or access to the Service.
12. Links 12.1. The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Xloon has no control over such sites and resources, you acknowledge and agree that Xloon is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Xloon shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
13. Xloon's Proprietary Rights 13.1. You acknowledge and agree that the Service and the Software contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that any content contained in sponsor advertisements or information presented to you through the Service or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. 13.2. Except as expressly authorized by Xloon or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part. 13.3. Xloon grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on your computing devices, subject to the terms and conditions of this Agreement. You shall not (and shall not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Xloon for use in accessing the Service. 13.4. In any litigation or arbitration regarding the infringement of Xloon's proprietary rights, Xloon, if the prevailing party, will be entitled to costs and attorneys' fees with respect to those issues.
14. Disclaimer of Warranties. You expressly understand and agree that: 14.1. Except as specifically set forth herein, to the fullest extent permissible by applicable law: (i) your use of the Services is at your sole risk, (ii) the Services are provided on an "as is" and "as available" basis, and (iii) Xloon and its parent, subsidiaries, affiliates and each of their respective officers, directors, stockholders, employees, attorneys, partners, licensors, agents and other representatives (collectively, the "Xloon Parties") expressly disclaim all implied warranties of any kind, including but not limited to any warranties of merchantability and fitness for a particular purpose. 14.2. The Xloon Parties make no warranty that: (i) the Services or Software will meet your requirements; (ii) the service will be uninterrupted, timely, secure or error-free; (iii) the results that may be obtained from the use of the Services or Software will be accurate or reliable; (iv) the quality or results of any products, services, software, information or other material purchased or obtained by you through the service will meet your expectations; and (v) errors or defects, if any, in the Software will be corrected. 14.3. Any material downloaded or otherwise obtained through the use of the Services is accessed at your own discretion and risk, and you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material and/or data. Your use of the Website is subject to additional disclaimers and caveats that may appear throughout the Website. 14.4. No advice or information, whether oral or written, obtained by you from the Xloon parties or through or from the Service shall create any warranty not expressly stated herein. The Xloon Parties assume no responsibility for any consequence relating directly or indirectly to any action or inaction you take based on the information, Services, Software or other material on the Website. While Xloon strives to keep the information on the Website and Software accurate, complete, and up-to-date, the Xloon Parties cannot guarantee, and will not be responsible for, any damage or loss related to the accuracy, completeness, or timeliness of the information on the Website or the Software.
15. Limitation of Liability 15.1. Except and to the extent required by applicable law, you expressly understand and agree that the Xloon Parties shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, loss of data or other intangible losses (even if Xloon has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the Services; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained, or messages received or transactions entered into through or from the Services; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the Services; or (v) any other matter relating to the Services. Notwithstanding anything to the contrary contained herein, Xloon's maximum aggregate liability to you for any causes whatsoever, and regardless of the form of action, will at all times be limited to the greater of (i) the amount paid, if any, by you to Xloon for the Services or Software in the 12 months prior to the action giving rise to liability or (ii) $100. 15.2. 15.1. Except and to the extent required by applicable law, you expressly understand and agree that the Xloon Parties shall not be liable for any default due to any act of God, natural disaster, war, act of terrorism, strike, lockout, industrial action, fire, flood, drought, earthquake, storm or other event beyond the reasonable control of Xloon.
16. Billing 16.1. Xloon Services and Software initially will be provided at no charge but Xloon reserves the right to begin charging for use anytime. If Xloon begins charging, the following provisions apply: 16.1.1. Unless cancelled, your Service subscription will be automatically renewed at the end of your subscription period. We will bill the subscription fee plus any applicable tax to you. Your membership will automatically renew for successive subscriptions, without prior notice to you, unless and until you cancel your membership, or we terminate it. You must cancel your membership before it renews in order to avoid billing of the next period's subscription fees to your payment method. 16.1.2. By using the Service, you are expressly agreeing that we are permitted to bill you a subscription fee, any applicable tax and any other charges you may incur in connection with your use of the Service. Additional charges may include service-level changes you request. The subscription fee will be billed at the beginning of your subscription and on each renewal thereafter, unless and until you cancel your membership. We will automatically bill you each billing period on the calendar day corresponding to the commencement of your membership. Except and to the extent required by applicable law, all fees and charges are nonrefundable, and there are no refunds or credits for partially used periods, or where you have elected to downgrade service levels or level or otherwise add any paid component or feature, we will pro-rate the amount due based on the number of days remaining in your billing cycle; provided, however, that any such proration shall be based on your service level or paid components or features in existence immediately prior to your election to upgrade or add paid components or features. 16.1.3. If you change your service level (downgrade it), you may cause the loss of Content or features for your account. Xloon does not accept any liability for such loss. You may cancel your subscription to the Service at any time, and cancellation will be effective immediately. Except and to the extent required by applicable law, we do not provide refunds or credits for any partial subscription periods or any feature of component that you have paid for but not used. 16.1.4. In connection with your purchase and/or use of the Service you may be subject to taxes, including, without limitation, sales and use taxes, by any authority which has jurisdiction to impose such taxes. You agree that the obligation and payment of any such taxes shall be your sole and absolute responsibility, and you agree, that unless otherwise required by applicable law, to indemnify Xloon pursuant to the section below entitled "Indemnity" to the extent that Xloon incurs any obligations or other liabilities in connection with such taxes.
17. Trademark Information. The Xloon and Xloon logo trademarks and service marks and other Xloon logos and product and service names are trademarks of Xloon and nothing in this TOS grants you a right to use them except as may be expressly allowed by this TOS.
18. Copyright Policy 18.1. It is Xloon's policy to respect the copyright and intellectual property rights of others. Xloon may remove content that appears to infringe the copyright or other intellectual property rights of others. In addition, Xloon may terminate access by users who appear to infringe the copyright or other intellectual property rights of others. Further, Xloon complies with the Digital Millennium Copyright Act ("DMCA"). 18.2. If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide Xloon's Copyright Agent the following information: 18.2.1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest. 18.2.2. A description of the copyrighted work that you claim has been infringed. 18.2.3. A description of where the material that you claim is infringing is located on the Website. 18.2.4. Your address, telephone number, and e-mail address. 18.2.5. 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. 18.2.6. A statement by you, made under penalty of perjury that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. 18.3. The Xloon agent to receive notifications of claimed infringement pursuant to the Digital Millennium Copyright Act ("DMCA") is as follows:Name: _____________________________ Address: ____________________________ Telephone No.: _______________________ Fax: ________________________________ E-mail: _____________________________ 18.4. Upon receiving a notice that substantially complies with the DMCA requirements and provides us with actual knowledge of infringement or facts or circumstances from which infringing activity is apparent, Xloon will expeditiously remove or disable access to the material in accordance with the DMCA. Note that the DMCA provides that any person who knowingly misrepresents that material or activity is infringing is liable for damages, including costs and attorneys' fees. 18.5. Xloon reserves the right to terminate access to our Services by repeat infringers, and in appropriate circumstances will terminate access to our Services by repeat infringers.
19. Export Law Assurances 19.1. You may not use or otherwise export or re-export the Service except as authorized by United States law and the laws of the jurisdiction in which Xloon was obtained. In particular, but without limitation, the Service may not be exported or re-exported (a) into (or to a national or resident of) any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List or Unverified List or Blocked Persons List or Debarred List on Nonproliferation Sanctions List. By using the Service, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
20. Pre-Dispute, Mandatory Binding Arbitration, and Class Action Waiver. Please read this arbitration provision carefully to understand your rights. You agree that any claim that you may have in the future must be resolved through binding arbitration. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. The rights that you would have if you went to court, such as discovery or the right to appeal, may be more limited or may not exist. You agree that you may only bring a claim in your individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You further agree that the arbitrator may not consolidate proceedings or claims or otherwise preside over any form of a representative or class proceeding. 20.1. Generally. Arbitration is a method of resolving a Claim without filing a lawsuit. "Claim" means any dispute between you, the Xloon Parties, and/or any involved third party relating to your account, Your Use, your relationship with the Xloon Parties, or these TOS. This includes any and all claims that relate in any way to your use of the Software or Services, your attempted use of the Software or Services, and any act or omission by the Xloon Parties or any third party related to your use or attempted use of the Software or Services. You, Xloon, the other Xloon Parties, or any involved third party may pursue a Claim. Xloon agrees to binding arbitration should it have any Claims against you. Likewise, you agree to binding arbitration should you have any Claims against Xloon. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to binding arbitration. This arbitration provision sets forth the terms and conditions of our agreement to binding arbitration and is governed by and enforceable under the Federal Arbitration Act (the "FAA"), 9 U.S.C. ยงยง 1-16, as amended. 20.2. Exceptions to Binding Arbitration. As an exception to binding arbitration, you and Xloon both retain the right to pursue, in a small claims court, any claim that is within the proper jurisdiction and proceeds on an individual (nonclass) basis. Binding arbitration also does not apply to disputes concerning trade secret misappropriation, patent infringement, copyright infringement or misuse, or trademark infringement or dilution. 20.3. Mandatory Pre-Dispute Procedures. You acknowledge and agree that before initiating any Claim (subject to the exceptions above) against the Xloon Parties, you will first give us an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us, including, but not limited to, information or representations related to our products and upon which you rely. You may send the written description by email to Xloon. You agree to negotiate with Xloon in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within 60 days after Xloon's receipt of your written dispute, you agree to the dispute resolution provisions below. 20.4. Commencement of Arbitration. You and Xloon agree to commence any arbitration proceeding within 1 year after the Claim arises (including the mandatory pre-dispute procedures outlined above) and that any proceeding commenced after 1 year shall be barred. 20.5. Sponsoring Organization, Rules and the Arbitrator. You agree that any Claims shall be resolved by submitting the dispute to final and binding confidential arbitration in Atlanta, Georgia before a single arbitrator who is a retired judge or an experienced attorney with experience in the subject(s) of the Claim. The arbitrator shall be chosen according to the American Arbitration Association Commercial Rules and the arbitration rules of the selected tribunal shall apply, which can be obtained by calling the selected tribunal. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these TOS and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you, Xloon or the other Xloon Parties. 20.6. Arbitration initiated by either party. The parties shall each pay their own additional fees, costs, and expenses of arbitration, including, but not limited to, those for any attorneys, experts, documents, and witnesses. 20.7. Arbitration Award. The arbitrator shall follow substantive law and may order any relief if permitted by law. The arbitrator may award any form of individual relief, including injunctions and punitive damages, so long as they are in accordance with applicable law. The arbitrator may award costs or fees to a prevailing party, but only if the law expressly allows it. Nothing herein shall be construed to limit the arbitrator's ability to award remedies provided by applicable law. Any award rendered shall include a written opinion and shall be final, subject to appeal under the FAA. 20.8. Enforceability. This provision survives termination of your account or relationship with Xloon, bankruptcy, assignment or transfer. If a portion of this arbitration provision is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect. 20.9. Miscellaneous. Failure or any delay in enforcing this arbitration provision in connection with any particular Claims will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims. This provision is the entire arbitration agreement between you and Xloon and shall not be modified except in writing by Xloon. 20.10. Amendments. Xloon reserves the right to amend this arbitration provision at any time. Your continued use of any Xloon website, purchase of any Xloon software or service, or use or attempted use of any Xloon software or service, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, Xloon will provide you an opportunity to opt-out. Your continued use of any Xloon website, purchase of any Xloon software or service, or use or attempted use of any Xloon software or service, is affirmation of your consent to such material changes. 20.11. Opting Out. You have the right to opt-out of this arbitration provision within 30 days from the date of purchase, use, or attempted use of any Xloon software or service (whichever comes first) by emailing Xloon. For your opt-out to be effective, you must submit a signed written notice identifying any Xloon any software or service you purchased, used or attempted to use within the 30 days and the date you first purchased, used or attempted to use of Xloon software or service. Untimely opt-outs will not be valid and you must then pursue your claim through arbitration pursuant to these terms.
21. Exclusive Venue for Other Controversies 21.1. You agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Agreement (other than an individual action filed in small claims court) shall be filed only in the state and federal courts located within the City of Atlanta, State of Georgia, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
22. General Information 22.1. Entire Agreement. The TOS constitute the entire agreement between you and Xloon and govern your use of the Service, superseding any prior agreements between you and Xloon with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Xloon services or products, affiliate services, third-party content or third-party software. You have no rights to amend these TOS. 22.2. Choice of Law and Forum. Except to the extent required by applicable law or as otherwise set forth herein (including the arbitration provisions set forth above), (i) the TOS and the relationship between you and Xloon shall be governed by the laws of the State of Georgia without regard to its conflict of law provisions, and (ii) You and Xloon agree to submit to the personal and exclusive jurisdiction of the courts located within the City of Atlanta, State of Georgia regardless of (A) your world-wide physical location, or (B) the jurisdiction where you purchased or use the Service. 22.3. Notice and Future Changes. Xloon may provide you with notices, including those regarding modifications to the TOS by email or via the Website. You agree to review the TOS periodically so that you are aware of any modifications. Your continued use of the Website or Service after any modifications indicates your acceptance of the modified TOS (and all other agreements, policies, rules and guidelines referred to herein). Unless expressly stated otherwise by Xloon, any new features, new services, enhancements or modifications to the Service implemented after your initial access to the Service shall be subject to these TOS. 22.4. Waiver and Severability of Terms. The failure of Xloon to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid under applicable law, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions to the greatest extent possible as reflected in the provision, and the other provisions of the TOS shall remain in full force and effect. 22.5. No Right of Survivorship and NonTransferability. You agree that your Xloon account is non-transferable and any rights to your Xloon ID or contents within your account terminate upon cessation of your legal existence or death, as applicable. Upon receipt of a copy of a certificate of dissolution or death certificate, as applicable, your account may be terminated and all contents therein permanently deleted. 22.6. Survival. The obligations and rights of the parties which by their nature would continue beyond the termination or expiration of these Terms of Service will survive beyond such termination or expiration and remain in full force and effect. 22.7. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. 22.8. Section Titles. The section titles in the TOS are for convenience only and have no legal or contractual effect.