The following terms and conditions of use (“Terms”) apply to your use of all websites, mobile applications, and other products and services described below that are owned, controlled, operated, or hosted (whether now or in the future) by Xunami, LLC and/or its corporate affiliates, parents or subsidiaries (collectively referred to herein, solely for ease of reference as “Xunami”, “us” or “we”). Terms are also available online at https://xunami.net/terms.
IMPORTANT NOTE: THE FOLLOWING TERMS CONTAIN PROVISIONS THAT REQUIRE YOU TO RESOLVE ANY DISPUTE WITH US THROUGH BINDING ARBITRATION ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY CLASS OR REPRESENTATIVE ACTION. PLEASE SEE SECTION 27 BELOW ENTITLED “BINDING ARBITRATION AND CLASS ACTION WAIVER” FOR DETAILS.
Last Updated: May 20, 2019
Welcome to the Xunami smartphone application (“App”) and associated website https://xunami.net (the “Website”; collectively the App and Website are referred to as the “Applications”). Below are the terms and conditions for use of the Applications and/or purchase and sale of Xunami’s products (collectively, the “Products”) providing a complete video marketing solution offering fully written video scripts and ideas, a teleprompter recording feature, enabling purchasers of the Products (“Subscribers”) to create their own professionally edited videos for commercial release on social media platforms using smartphone cameras. Subscribers can upload video footage to Xunami through the App for Xunami to edit and return (usually within a week) completed with graphics, additional video footage, music, etc. for use by a variety of professionals and businesses. The Applications and Products are collectively referred to as the “Services”. If you disagree with any part of these Terms, then you do not have permission to access the Services. Subscribers can also upload video footage to Pixona through the App for Pixona to edit and return (usually within a week) completed with graphics, additional video footage, music, etc. for use by a variety of professionals and businesses. The Services are only available in the United States.
As used herein, the following capitalized terms shall have the meanings noted below:
“Content” means and includes, without limitation, photos, images, artwork, graphics, videos, audios, animations, text, editorials, comments, writings, personal information, music, liner notes, lyrics, and other elements and materials, in any media or format now known or hereinafter devised, whether physical, electronic, digital, analog, or otherwise.
“Collaborative Content” means any customized Content that results from Users incorporating User Materials into Xunami Content (as defined below) as the Xunami Services may allow and enable from time to time. An example of Collaborative Content would be a video or image resulting from you utilizing Xunami ’s scripts in a video or uploading your own photo(s) into a Xunami template.
“Licensors/Suppliers” means any and all third parties that make available to Xunami (pursuant to a license or otherwise) their proprietary Content, products, or services for use, deployment, display, performance, and/or distribution via the Xunami Services. For the avoidance of doubt, the term “Licensors/Suppliers” includes third parties that place, display, or distribute their advertising, promotional, or sponsorship Content on the Xunami Applications. Please (click here) to view the special notices and disclaimers regarding Xunami’s current Licensors/Suppliers. Such notices and disclaimers constitute an integral part of these Terms.
“Xunami Content” means any and all Content (excluding User Materials) made available through the Xunami Products, including Content owned or controlled by Xunami and/or its corporate affiliates, as well as Content licensed or otherwise provided to Xunami by Licensors/Suppliers.
“Trademarks” means any and all marks, brands, logos, designs, character names, location names, slogans, catch words and phrases, business names, trade names, trade dress, packaging designs, label designs, webpage layouts, look and feel, and other indicia of source, origin, or identification, owned or controlled by Xunami, its corporate affiliates, and/or Licensors/Suppliers. Any and all Trademarks owned or controlled by Xunami and/or its corporate affiliates, including, without limitation, the Xunami name and logos and characters, and the layout and design of the websites and mobile applications, are referred to hereinafter as “Xunami Trademarks”; and any and all Trademarks owned or controlled by Licensors/Suppliers, are referred to hereinafter as “Licensors/Suppliers Trademarks.”
“Users” means Subscribers and anyone else accessing the Xunami Applications, including visitors and others who wish to access, view, purchase or use the Products. Users are also sometimes referred to as “you” or “your” in these Terms.
“User Materials” means Content which Users upload, submit, record, stream, distribute, or otherwise make available through the Applications, but excluding any and all Xunami Content.
A detailed description of the Products and guide on how to use the Products to create, submit and edit User Materials including expectations on turnaround time can be found online at https://xunami.net/guide (the “Subscriber Guide”). Access to and use of the Applications as well as purchase and use of the Products is conditioned upon acceptance of and compliance with the terms of the Subscriber Guide as well as these Terms.
Services and Content
These Terms apply to all Users, including Users who are also contributors of User Materials. The Services includes all aspects of Xunami’s Services, including but not limited to all Products, scripts, guidance, software and other services offered via the Applications, including the following specific Products [provide specific names for products/services offered to Subscribers or ala Carte.] You are responsible for the User Materials that you submit on or through the Applications as well as Content you may disseminate through social media or other means of publication, including its compliance with applicable laws and regulations, reliability, and appropriateness.
You acknowledge that once User Materials are integrated into Collaborative Content, all of the licenses for such User Materials, as granted in Section 6 of these Terms, shall extend in perpetuity, meaning that Xunami will have the perpetual right throughout the world to exploit such Collaborative Content embodying your User Materials in any and all media now known or hereafter devised.
By submitting, posting or publicizing Collaborative Content, Users represent and warrant that: (i) the User Materials are owned by the User and/or the User has the right to use it and the right to grant Xunami the rights and licenses as provided in these Terms, (ii) that the User’s use of the Services and any submission and use of any User Materials does not and shall not violate any applicable law or regulation applicable to the User or his/her employer or the terms of any social media or other advertising, publication or communication platform Users may use to disseminate the Content and (iii) that the posting of User Materials on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity.
Xunami reserves the right to terminate the account or Subscription (defined below) of anyone found to be infringing on a copyright or other trademark or for any other reason. Xunami may terminate your account or Subscription at any time and for any reason, effective immediately upon sending notice to you at the email address you provided during the account set-up process, or such other email address as you may provide to Xunami. If Xunami terminates your account or Subscription to the Xunami Services due to a breach of these Terms, you shall not be entitled to the refund of any unused portion of Subscription fees (if any). Even after the account and/or Subscription is terminated, these Terms will remain in full force and effect, provided, however, that the User Materials uploaded by you may no longer be accessible through the Xunami Services once your account has been terminated.
Subject to your strict compliance with these Terms and except as otherwise expressly permitted by these Terms or by Xunami, Xunami grants you a limited, personal, non-exclusive, non-commercial, revocable, non-assignable, and non-transferable license to download, view, and/or publicize the Xunami Content included in Collaborative Content (excluding source and object code) for your commercial use, PROVIDED that: (i) you maintain all copyright and other proprietary notices contained in the Xunami Content or any copy you may make of the Xunami Content; (ii) you do not use the Xunami Content in a manner that suggests an association with Xunami or any of its Licensors/Suppliers or any of their products, services, or brands; (iii) you do not modify the Xunami Content; (iv) you do not allow or aid or abet any third party (whether or not for your benefit) (a) to copy or adapt the object code of any of the Xunami Services or (b) reverse engineer, decompile, reverse assemble, modify, or attempt to discover any source code associated with any of the Xunami Services or other products or processes accessible through the Xunami Services; and (v) you do not insert any code or product to manipulate the Xunami Content in any way that affects any User’s experience. You also agree that you will not: (a) use any robot, spider, rover, scraper, or any other data mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy, or distribute the Xunami Content (except as may be a result of standard search engine or internet browser usage), nor will you (b) modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Xunami Content in any way for any public or commercial purpose except as included in Collaborative Content and expressly permitted by these Terms or by Xunami.
Subscriptions and Product Purchases
The Products are provided as a package to develop one (1) fully edited video per month using Xunami’s templates, scripts and editing services (a “Product Package”) and are billed on a monthly subscription basis (“Subscription(s)”) at the prices identified in the Applications. Your monthly fee covers one edited video for that month only Additional Product Packages may be purchased by Subscribers at the prices identified in the Applications. Detailed Product Package descriptions are contained in the Subscriber Guide along with the requirements for submission of Content.
If you purchase a Subscription, your credit card will be billed in advance on a recurring and periodic basis (“Billing Cycle”). Billing cycles are set either on a monthly or annual basis, depending on the type of Subscription plan you select when purchasing a Subscription. At the end of each Billing Cycle, your Subscription may automatically renew under the exact same conditions unless you cancel it or Xunami cancels it. You may cancel your Subscription renewal either through your application store order management page, or by contacting the Xunami’s customer support team.
By using the Services and/or by becoming a Subscriber, you acknowledge that Xunami reserves the right to charge a fee for the Products and the right to terminate your account or Subscription should you breach these Terms or fail to pay for the Products as required by these Terms, the Subscriber Guide or the Applications. Please keep in mind that Xunami’s Subscription fees at registration may change from time to time.
Xunami may elect to sell some or all of the Products on a transactional “ala Carte” basis at such prices as may be identified in the Applications from time to time (“Individual Sales”). All of these Terms applicable to Subscriptions shall apply to Individual Sales except there will be no Billing Cycle and the details of any Product Package is limited to the specific Individual Sale.
At Xunami’s election, additional charges as detailed in the Subscriber Guide or the Applications may be imposed on Users who submit custom editing requests, or who fail to comply with the length or other requirements for video submission. Xunami shall be under no obligation to undertake additional work beyond what is required for the applicable Product Package as described in the Subscriber Guide.
You may cancel your Subscription at any time. You will not receive any refunds once your card has been charged, regardless of whether you submitted a video for editing or not. Your Subscription will not “rollover” any videos not completed or accumulate video credits of any kind. If you do not submit a video for editing in any given month, your credit card will still be charged and you will not carry over any credits to the next month. Upon termination of your Subscription, you will not receive any additional videos or editing. Your account must be active to receive editing and delivery services.
Your Content and Conduct
You shall be solely responsible for your own Content, User Material and the consequences of submitting and publishing your Content. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish, post and otherwise offer the User Material you submit; and you license to Xunami all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication pursuant to these Terms.
Xunami is not responsible for User Content including, data or digital video storage. Xunami is not responsible for any loss or damage of data or digital video files during upload or transfer. Xunami recommends preserving User Content by storing copies of all your submitted Content using backup files. When you upload User Content, the resolution and format of your Content may be modified depending on the format you use. Further, if you upload Content with extremely high resolution or bit-rate, Xunami may use its discretion to reduce the data regardless of the resolution you choose. You should not use Xunami services as the only source to store your Content. Xunami will not be liable for any loss of Content.
You retain all right, title, and interest in and to the User Materials uploaded by you hereunder (including, without limitation, the copyrights therein and thereto), subject to the non-exclusive rights granted to Xunami under these Terms. You are free to grant similar rights to others during and after the Term. For the avoidance of doubt, however, when you upload User Materials through any of the Xunami Services, you acknowledge that third parties may use your User Materials. You further acknowledge and agree that, as between Xunami and you, Xunami and/or its Licensors/Suppliers (as the case may be) are, and shall at all times remain, the sole and exclusive owner(s) of all right, title, and interest (including, without limitation, copyright) in and to the Xunami Services, all Trademarks, and all Xunami Content, and that your right to use the Xunami Services, Trademarks, and Xunami Content, as set forth herein, shall not in any way transfer or convey any ownership rights or other proprietary interests therein to you.
Unless otherwise expressly stated in these Terms or otherwise agreed between you and Xunami in a writing signed by both parties, you hereby grant to Xunami a worldwide, royalty-free, sublicensable, transferable, assignable, non-exclusive license to do the following things during the Term (and in perpetuity with respect to any Collaborative Content as set forth in these Terms): (i) to prepare and encode your User Materials, or any portion thereof for electronic, digital, and/or other transmission, manipulation, and exhibition in any format and by any means now known or hereafter devised; (ii) to display, copy, reproduce, edit, create derivative works of, exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, promote, distribute through any means (including electronic, analog and digital), and publish and/or otherwise exploit, in digital or physical form, any or all of your User Materials, including any portion thereof, and to include any such materials in compilations or other works, by any and all means in all media now known or hereinafter created, anywhere in the world, and for any purpose (for avoidance of doubt, the rights granted to Xunami hereunder include the rights to make your User Materials available through the Xunami Services, third-party websites, and electronic devices); (iii) to modify, adapt, edit, change, or otherwise alter and create derivative works of the User Materials and use your User Materials as described herein; and (iv) to license and/or sublicense to any third party any of the foregoing rights in your User Materials, or any part or element thereof, subject to the terms and conditions of these Terms.
You hereby agree not to assert any right, title, or interest in any and all Trademarks and Xunami Content in Collaborative Content. You acknowledge and agree that all right, title, and interest (including, without limitation, copyright, trademark, and other intellectual property rights) in and to any and all Trademarks and Xunami Content shall remain the sole and exclusive property of Xunami and/or Licensors/Suppliers (as the case may be). For the avoidance of doubt, with respect to any and all Collaborative Content, you acknowledge and agree that your rights therein and thereto shall be expressly limited to your User Materials contained in such Collaborative Content and shall in no event extend to any Xunami Content or any Trademarks contained or embodied therein. You also agree not to assert any privacy, publicity, moral, or similar rights held by you (and to the extent any other person(s) whose name(s), photograph(s), likeness(es), voice(s), performance(s), and/or biographical materials are embodied in your User Materials, you represent and warrant that you have obtained all necessary consents from such third parties consistent with the full scope of rights granted to Xunami pursuant to these Terms, and you agree that such persons shall not assert any intellectual property, privacy, publicity, contractual, moral, or similar rights, or make any claims that your User Materials are objectionable or otherwise defamatory) in connection with the exploitation of such User Materials as described hereunder.
You further agree that User Material you submit to the Services will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Xunami all of the license rights granted herein.
Xunami reserves the right to decide whether Content violates these Terms for reasons other than copyright infringement, such as, but not limited to, pornography, obscenity, or excessive length. Xunami may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a User’s account or Subscription for submitting material in violation of these Terms.
You further agree that you will not submit to the Services any Content or other material that is contrary to the YouTube Community Guidelines, currently found at https://www.youtube.net/t/community_guidelines, which may be updated from time to time (or any successor nationally recognized guidelines for similar submissions), or contrary to applicable local, state or national laws and regulations.
Xunami will process any audio or audiovisual Content uploaded by you to the Services in accordance with the Xunami Data Processing Terms as noted in the Subscriber Guide (www.Xunami.net/t/terms_dataprocessing).
Xunami does not endorse any Content submitted to the Services by any User or other licensor, or any opinion, recommendation, or advice expressed therein, and Xunami expressly disclaims any and all liability in connection with Content. Xunami does not permit copyright infringing activities and infringement of intellectual property rights on the Services, and Xunami will remove all Content if properly notified that such Content infringes on another’s intellectual property rights. Xunami reserves the right to remove Content without prior notice. User retains any and all prior rights to any User Material submitted through the Services and User is responsible for protecting those rights. Xunami takes no responsibility and assume no liability for User Material User or any third party submits to the Services. However, by submitting Content using the Services you grant us the right and license to use, modify, edit, publicly perform, publicly display, reproduce, and distribute such Content on and through the Services. You agree that this license includes the right for us to make your Content available to other users of the Services, who may also use your Content subject to these Terms.
Xunami,has the right to edit all Content provided by Users to make the Content look, sound or flow better in the sole discretion of Xunami. Xunami shall have no obligation to restore any deleted material from submitted Content or to provide any custom edits requested by Users. In addition, Content submitted on or through the Services are the property of Xunami and may be used without further permission. Users may not distribute, modify, transmit, reuse, download, repost, copy, or use Xunami Content, whether in whole or in part, for commercial purposes or for personal gain, except as incorporated in Collaborative Content.
Users agree not to submit Content through any technology or means other than the explicitly authorized means Xunami may designate in the Subscriber Guide.
You agree not to: (i) violate any applicable law or regulation; (ii) submit or upload any materials that conflict with any of your representations and warranties set forth in Section 14 of these Terms; (iii) infringe the rights of any third party, including without limitation, intellectual property, privacy, publicity, and/or contractual rights; (iv) use any content or information available through the Services for any unauthorized purpose; (v) mislead Users as to the features, functionality, origin, or capabilities of the Services; (vi) interfere with or damage any of the Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing of electronic mail address information, or similar methods or technology; (vii) use any of the Xunami Services to transmit, distribute, post, or submit any information concerning any other person or entity, including without limitation, photographs of others, personal contact information, or account numbers, or any defamatory materials of any kind, except where you have obtained express permission from such other person or entity in connection with any of the foregoing; (viii) use any of the Xunami Services in connection with the distribution of unsolicited commercial e-mail (“Spam”) or advertisements; (ix) “stalk” or harass any other user of the Xunami Services; (x) collect or store any information about any other user other than in the course of the permitted use of the Xunami Services; (xi) sell or otherwise transfer any User information or other User’s User Materials); or (xii) assist any third party in doing any of the foregoing.
Xunami does not solicit User submissions of content/product/service/business ideas, concepts, suggestions, or proposals, including, without limitation, stories, scripts, fan fictions, characters, designs, drawings, or artwork except as expressly provided in the Applications and Subscriber Guide and in return for any required fees. We ask that you do not make unsolicited submissions to Xunami. If you do make an unsolicited submission to Xunami, however, you expressly acknowledge and agree that: (i) your submission is not being made in confidence or in trust, and no contractual, fiduciary, or confidential relationship of any kind (whether express or implied) is created between you and Xunami by reason of your submission; (ii) Xunami and its affiliates, licensees, successors, and assigns will be free (with no obligation) to use your submission for any purpose and in any format or medium, and Xunami and its affiliates, licensees, successors, and assigns will have no obligation or liability to you whatsoever, and you will have no right or claim to any compensation, payment, credit, attribution, notice, approval, or inspection of any kind whatsoever with respect to any such use; (iii) Xunami or third parties may have independently developed, or may hereafter independently develop Content or material that is similar to your submission, and any similarity between your submission and any Xunami Content or material or production is purely coincidental; (iv) your submission is not returnable and may be retained indefinitely by Xunami and its affiliates, licensees, successors, and assigns; (v) to the extent your submission includes any idea, concept, recommendation, suggestion, or proposal for a prospective product or service name, mark, logo, slogan, tagline, domain name, or other source identifier, Xunami and its affiliates, licensees, successors, and assigns will be free (with no obligation) to adopt, use, register, and license to others such name, mark, logo, slogan, tagline, domain name, or other source identifier (including any variation thereof) for and in connection with their businesses throughout the world in perpetuity, and will have sole ownership of all statutory and common law trademark rights and all associated goodwill resulting from such adoption, use, registration, and licensing; and (vi) you waive the right to assert against Xunami, and you release and forever discharge Xunami from, any and all claims and damages based upon or relating to your submission, including, without limitation, claims and damages for copyright infringement, trademark infringement, invasion of privacy, violation of the right of publicity, defamation, libel, false light, unfair competition, unjust enrichment, idea theft, idea misappropriation, breach of implied contract, breach of fiduciary duty, and/or breach of confidence or trust.
General Use of the Services—Restrictions
You agree not to use the Services for any of the following uses unless you obtain Xunami’s prior written approval:
to alter or modify any part of the Services.
to circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Services or the Content therein.
the sale of access to the Services or services similar to the Services using any portion of the Products; or
the sale of advertising, sponsorships, or promotions within the Services.
In order to access the Products, you will have to create an account. You may never use another’s account without permission. When creating your account, you must provide accurate and complete information and you must update that information as necessary to maintain accuracy and completeness. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Xunami immediately of any breach of security or unauthorized use of your account.
As a Xunami account holder you may submit Content to the Services, including videos. You understand that Xunami does not guarantee any confidentiality with respect to any Content you submit.
Although Xunami will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Xunami or others due to such unauthorized use. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account on the Service. You further guarantee that you are above the age of 18 years old to use the Products and agree to the Terms.
You are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your device, computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.
You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not use as a username any name that is offensive, vulgar or obscene.
Xunami, in its sole discretion and at any time, may modify the Subscription fees or Product Package for Subscriptions or the fees for any Product sold through Individual Sales. Any Subscription fee change will become effective at the end of the then-current Billing Cycle. Xunami will provide you with a reasonable prior notice of any change in Subscription fees to give you an opportunity to terminate your Subscription before such change becomes effective. Your continued use of the Services after the Subscription fee change comes into effect constitutes your agreement to pay the modified Subscription fee amount.
Since the Services may be cancelled at any time, Users’ failure to submit Content shall not be grounds for any refunds. Nevertheless, certain refund requests for Subscriptions may be considered by Xunami on a case-by-case basis and granted in sole discretion of Xunami.
By creating an Account on our Service, you agree to subscribe to marketing or promotional materials and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.
You acknowledge and agree that all Xunami Services, Trademarks, and Xunami Content are the property of Xunami and/or Licensors/Suppliers (as the case may be) and are protected by rights of publicity, copyright, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. Except as expressly authorized by Xunami and/or Licensors/Suppliers (as applicable), you may not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from, any Collaborative Content, Trademark or Xunami Content, or otherwise use any Trademark or Xunami Content in any way. You also agree not to retrieve data or other content or any materials from the Xunami Services to create or compile, directly or indirectly, a collection, compilation, database, directory or the like, whether by manual methods, through the use of “bots,” or otherwise. You further agree not to use any Trademark or Xunami Content as metatags on other web sites. Moreover, you agree not to display any of the Xunami Services in a frame (or any of our content via in-line links) without Xunami’s express written permission. The Services, Products and its original content (excluding User Material), features and functionality are and will remain the exclusive property of Xunami and its Licensors/Suppliers (as applicable). The Services are protected by copyright, trademark, patent, and other laws of the United States. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of Xunami.
Links to Other Web Sites
Our Service may contain links to third party web sites or services that are not owned or controlled by Xunami. Xunami,has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites. In addition, Xunami will not and cannot censor or edit the content of any third-party site. By using the Services, you expressly relieve Xunami from any and all liability arising from your use of any third-party website. You acknowledge and agree that Xunami, LLC 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 third party web sites or services. We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit.
Representations and Warranties
You represent and warrant that:
you have the full right and power to enter into and perform these Terms and to grant Xunami and Licensors/Suppliers all rights to use your User Materials (including individuals’ names, likenesses, voices, and other elements of identity embodied therein) as contemplated in these Terms, including, without limitation, the license grants in Section 6 of these Terms;
you exclusively own and/or control all right, title, and interest (including, without limitation, copyright) in and to your User Materials, and have secured all necessary third-party consents, rights, licenses, and permissions, if any, required in order for you to enter into and perform these Terms and to grant Xunami and Licensors/Suppliers all rights to use your User Materials (including individuals names, likenesses, voices, and other elements of identity embodied therein) as contemplated in these Terms (including, without limitation, consents, and permissions from owners of any elements that are used or otherwise incorporated into your User Materials);
your User Materials (and Xunami’s use thereof as contemplated under these Terms) do not and will not infringe on any rights of any third party, including any trademark, copyright, patent, trade secret, right of privacy or publicity, or moral rights of any third party;
all information that you have provided or will provide to Xunami is true and complete;
your User Materials do not and will not violate any law, statute, ordinance, or regulation;
your User Materials do not and will not: (i) be defamatory, libelous, slanderous, or threatening; (ii) contain sexually explicit content that is pornographic, obscene, harmful to minors or constitute violations of child pornography or child sexual exploitation laws; (iii) denigrate any ethnic, racial, sexual, or religious group by stereotypical depiction or otherwise; (iv) exploit images or the likeness of any individual other than yourself (except where you have obtained express permission from such other individual(s) for such exploitation); (v) encourage or otherwise depict glamorized drug use; (vi) make use of offensive language or images; (vii) promote physical harm of any kind against any individual or group or characterize violence as acceptable, glamorous, or desirable; (viii) contain your or any other individual’s personal contact information; (ix) promote an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files; (x) provide instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; and/or (xi) solicit passwords or personal identifying information for commercial or unlawful purposes; and your User Materials do not and will not contain any viruses or other programming routines that may detrimentally interfere with computer systems or data, whether those of Xunami or any third party.
Downloadable Items; Collaborative Content:
To the extent that Xunami makes any applications, software, or functionalities available for download or use through any of the Applications (the “Downloadable Items”), such Downloadable Items are the copyrighted work (as between you and Xunami) of Xunami and/or its Licensors/Suppliers. Your use of the Downloadable Items may be governed by additional terms and conditions, which may be included with the Downloadable Items. Please carefully read any such additional terms and conditions to determine the full extent of conditions governing the use of such Downloadable Items.
If you install a Downloadable Item that is a software application, you consent to the download of such software to your computer or device and accept these Terms and any additional terms and conditions related to such software application. With respect to any User Materials that you download from or through any of the Xunami Services, you are responsible for all licensing, reporting and payment obligations of any kind to third parties in connection with such downloaded User Materials (including, without limitation, any such obligations that may arise from use by Xunami or its Licensors/Suppliers of such User Materials as authorized in these Terms).
Your use of any Collaborative Content is subject to the following additional terms and conditions: (i) the permission for you to use Xunami Content to generate Collaborative Content or otherwise in association with your User Materials is expressly limited to Xunami Content specifically made available by Xunami for that purpose and may be revoked by Xunami at any time without notice or liability to you; (ii) your use of Collaborative Content is subject to these Terms and any additional terms and conditions as Xunami may from time to time prescribe; (iii) you may NOT sell, lease, hypothecate, transfer, license, distribute, reproduce, encumber, or otherwise exploit Collaborative Content, in whole or in part, EXCEPT that you may use the Xunami Services to generate and engage in Viral Distribution (as defined below) of Collaborative Content, but in each case only to the extent expressly permitted by these Terms or otherwise by Xunami; as used herein, “Viral Distribution” means: (a) posting and displaying links to Collaborative Content on a business or personal web site, (b) posting on a third-party web site that permits posting of such links at the direction of users subject to its terms and conditions (such as Facebook or Linked In), provided that such third-party web site does not charge for access to the Collaborative Content or associate products, services, or advertising with the Collaborative Content (c) use in other commercial advertising purposes, (d) sending Collaborative Content to business sources, friends and/or acquaintances by e-mail, text, or other forms of digital delivery; and (e) reproducing copies of Collaborative Content for other promotional or personal use; (iv) you must always include and keep intact, and not remove or alter, any and all of Xunami’s and its Licensors/Suppliers’ trademarks, copyrights and other proprietary rights notices, legends, watermarks, and other markings contained or embedded in or otherwise accompanying Collaborative Content (or any Xunami Content portion thereof), and you agree to comply with all usage and viral distribution guidelines that may be prescribed by Xunami from time to time; and (v) YOU AGREE NOT TO ENGAGE IN SPAMMING OR OTHER UNLAWFUL OR CONTROVERSIAL BEHAVIOR IN CONNECTION THEREWITH.
We may terminate or suspend your account and bar access to the Services immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of the Terms. If you wish to terminate your account, you may simply discontinue using the Services. All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Limitation of Liability
In no event shall Xunami, nor its directors, employees, partners, agents, suppliers, or affiliates, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from (i) your access to or use of or inability to access or use the Services; (ii) any conduct or content of any third party using the Services; (iii) any Content obtained from the Services; and (iv) unauthorized access, use or alteration of your transmissions or Content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose. You specifically acknowledge that Xunami shall not be liable for content or the defamatory, offensive, or illegal conduct of any third party and that the risk of harm or damage from the foregoing rests entirely with you.
Xunami strives to provide you with the best possible experience, but we can’t guarantee that there will be no errors or interruptions on our end. You acknowledge and agree that the operation of the Xunami Services may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors. Xunami shall not be responsible to you or others for any such interruptions, errors, or problems or an outright discontinuance of the Xunami Services. There are no assurances whatsoever that any of your User Materials or any part or element thereof shall actually be utilized through any of the Xunami Services or if so utilized continue to be available for any particular time. Xunami has the right, in Xunami’s sole and absolute discretion, to remove from the Xunami Services at any time your User Materials or any part thereof. Notwithstanding the foregoing, Xunami does not control the Content of any User Materials and does not have any obligation to monitor such Content for any purpose. You acknowledge that you are solely responsible for all User Content submitted through the Xunami Services. The Xunami Services may be discontinued at any time, with or without reason and without any liability to you or to any third party for any modification or discontinuance of the Xunami Services.
Your use of the Products are at your sole risk. The Services, including the Products, are provided on an “AS IS” and “AS AVAILABLE” basis. The Products are provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance. Xunami does not warrant that the results of using the Products will meet your requirements. Xunami expressly disclaims any obligations to (i) confirm compliance with (a) applicable law or (b) the requirements of third-party social media platforms such as YouTube, Facebook and LinkedIn or (ii) provide customized edits or changes to meet Users’ requests or specifications.
Services and Applications Disclaimer
USER AGREES THAT USE OF THE SERVICES SHALL BE AT USER’S SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, XUNAMI, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND THE USE THEREOF. XUNAMI MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE APPLICATIONS’ CONTENT OR THE CONTENT OF ANY LINKED SITES AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR APPLICATIONS, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR APPLICATIONS BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. XUNAMI DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A USER AND XUNAMI WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN USERS AND THIRD-PARTY PROVIDERS OR PURCHASERS OF USER’S PRODUCTS OR SERVICES.
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Xunami, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Services or any person using your account and password; (ii) your violation of any term of these Terms or of applicable law; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that Content caused damage to a third party. This defense and indemnification obligation will survive these Terms and your use of the Services.
Exclusion of Damages:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT (INCLUDING NEGLIGENCE) SHALL XUNAMI, ITS OFFICERS, DIRECTORS, MEMBERS, PARENTS, AFFILIATES, SUBSIDIARIES, LICENSEES, ASSIGNS, SUCCESSORS, AGENTS, REPRESENTATIVES, EMPLOYEES, OR LICENSORS/SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF AN ACTION UNDER CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS, INCIDENTIAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, OR EXEMPLARY DAMAGES), WHETHER OR NOT XUNAMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OR PERFORMANCE OF THE XUNAMI SERVICES. IN NO EVENT SHALL XUNAMI’S TOTAL LIABILITY TO YOU UNDER THESE TERMS OF SERVICE FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED $200.00 USD. YOU EXPRESSLY WAIVE ANY AND ALL RIGHT TO SEEK OR OBTAIN EQUITABLE OR INJUNCTIVE RELIEF RELATING IN ANY WAY TO THESE TERMS, THE XUNAMI SERVICES, AND/OR ANY USER MATERIALS (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO ANY USE OF YOUR USER MATERIALS BY XUNAMI). THE PARTIES ACKNOWLEDGE AND AGREE THAT XUNAMI HAS ENTERED INTO THESE TERMS OF SERVICE IN RELIANCE ON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN YOU AND XUNAMI AND FORM THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
Ability to Accept Terms
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. In any case, you affirm that you are over the age of 13, as the Services are not intended for children under 13. If you are under 13 years of age, then please do not use the Services.
Any software made available through the Xunami Services (the “Software”) is further subject to United States export controls. No Software may be downloaded through the Xunami Services or otherwise exported or re-exported (a) into (or to a national or resident of) any Country to which the U.S. has embargoed goods or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Xunami without restriction.
You agree that: (i) the Services shall be deemed solely based in Arizona; and (ii) the Applications shall be deemed passive websites that do not give rise to personal jurisdiction over Xunami, either specific or general, in jurisdictions other than Arizona. These Terms shall be governed by the internal substantive laws of the State of Arizona, without respect to its conflict of laws principles. Without limiting the generality of the preceding sentence, however, the United States Federal Arbitration Act and federal arbitration law shall further apply to these Terms. With respect to any disputes or claims not subject to arbitration (as set forth below) between you and Xunami that arises in whole or in part from the Services shall be decided exclusively by a court of competent jurisdiction located in Maricopa County, Arizona. YOU AND XUNAMI AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. Nothing in these Terms shall be deemed to confer any third-party rights or benefits.
Arbitration and Waiver of Jury Trial:
YOU AND XUNAMI AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS OF SERVICE OR THE SALE OF ANY PRODUCT OR SERVICE BY XUNAMI SHALL BE FINAL AND BINDING ARBITRATION, except that: (i) to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party’s patent, copyright, trademark, or trade secret rights, such other party may seek injunctive or other appropriate relief; and (ii) you may assert a claim in a small claims court if your claim qualifies.
In the event of a dispute, you or Xunami must send to the other party a notice of dispute, which is a written statement that sets forth the name, address and contact information of the party giving the notice, the facts giving rise to the dispute, and the relief requested. You must send any notice of dispute in writing to us at Xunami, ATTN: Arbitration Notice, 9221 E Via de Ventura, Scottsdale, Arizona 85258. We will send any notice of dispute to you at the contact information we have for you.
Unless you and Xunami are able to resolve the dispute through informal negotiation within sixty (60) days from the date a party’s notice of dispute is sent to the other party, either you or Xunami may commence arbitration before a neutral arbitrator whose decision will be final except for a limited right of appeal under the U.S. Federal Arbitration Act.
By using the Xunami Services in any way, you unconditionally consent and agree that: (1) any claim, dispute, or controversy (whether in contract, tort, or otherwise) you may have against Xunami and/or its parent, subsidiaries, affiliates and each of their respective members, officers, directors and employees (all such individuals and entities collectively referred to herein as the “Xunami Entities”) arising out of, relating to, or connected in any way with the Products or Applications or the determination of the scope or applicability of this agreement to arbitrate, will be resolved exclusively by final and binding arbitration administered by JAMS and conducted before a sole arbitrator in accordance with the rules of JAMS; (2) this arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; (3) the arbitration shall be held in Phoenix, Arizona; (4) the arbitrator’s decision shall be controlled by the terms and conditions of these Terms and any of the other agreements referenced herein that the applicable user may have entered into in connection with the Xunami Services; (5) the arbitrator shall apply Arizona law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (6) there shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only your and/or the applicable Xunami Entity’s individual claims; the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (7) the arbitrator shall not have the power to award punitive damages against you or any Xunami Entity; (8) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any Xunami Entity exceed $125 USD, and you are unable (or not required under the rules of JAMS) to pay any fees and deposits that exceed this amount, Xunami agrees to pay them and/or forward them on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Xunami will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (9) with the exception of subpart (6) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (6) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor Xunami shall be entitled to arbitrate their dispute. For more information on JAMS and/or the rules of JAMS, visit their website at www.jamsadr.net .
Xunami reserves the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material we will provide at least 30 days notice prior to any new material terms taking effect. What constitutes a material change will be determined at our sole discretion. By continuing to access or use our Services after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Services. Xunami reserves the right to discontinue any aspect of the Products or Services at any time.
If you have any questions about these Terms, please contact us at support@Xunami.net.