Terms of Use
Welcome to XM Works. By accessing or using our web site at www.XMWorks.com, you (the “User”) signify that you have read, understand and agree to be bound by these Terms of Use (“Terms of Use” or “Agreement”), whether or not you are a registered member of XM Works. We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Use at any time without further notice. If we do this, we will post the changes to these Terms of Use on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of XM Works and any of its services and/or functions after any such changes constitutes your acceptance of the new Terms of Use. If you do not agree to abide by these or any future Terms of Use, do not use or access (or continue to use or access) XM Works or its services, It is your responsibility to regularly check the Site to determine if there have been changes to these Terms of Use and to review such changes.
Registration Data; Account Security
In consideration of your use of XM Works, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site (“Registration Data”); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to XM Works, to keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account.
Trademarks
XM Works, and other XM Works graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress of XM Works in the U.S. and/or other countries. XM Works’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of XM Works.
User Conduct
You represent, warrant and agree that no materials of any kind submitted through your account or otherwise posted, transmitted, or shared by you on or through XM Works will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material.
In addition, you agree not to use XM Works and/or its services/functions to:
harvest or collect email addresses or other contact information of other users from XM Works by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
use XM Works in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site;
use automated scripts to collect information from or otherwise interact with XM Works;
upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;
register for more than one User account, register for a User account on behalf of an individual other than yourself;
impersonate any person or entity, or falsely state or otherwise misrepresent yourself, or your affiliation with any person or entity;
upload, post, transmit, share, store or otherwise make publicly available on XM Works any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes;
upload, post, transmit, share 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;
intimidate or harass another member of XM Works;
upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
use or attempt to use another’s account, service or system without authorization from XM Works, or create a false identity on the Service or the Site.
upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of XM Works, is objectionable or which restricts or inhibits any other person from using or enjoying the Site, or which may expose XM Works or its users to any harm or liability of any type.
XM Works has adopted a policy of terminating, in appropriate circumstances and at XM Works’s sole discretion, members who are deemed to be repeat infringers of the above rules. XM Works may also at its sole discretion limit access to the XM Works website and/or terminate the memberships of any users who violate the above rules, whether or not there is any repeat infringement.
Inappropriate Content
You may not post or share Content that:
is obscene, pornographic or sexually explicit
depicts graphic or gratuitous violence
makes threats of any kind or that intimidates, harasses, or bullies anyone
is derogatory, demeaning, malicious, defamatory, abusive, offensive or hateful
NO RESALE OF SERVICE
You agree not to sell, resell, or offer for any commercial purposes, any portion of the XM Works Sites, use of the XM Works Sites, or access to the XM Works Sites.
GENERAL PRACTICES REGARDING USE AND STORAGE
XM Works may establish general practices and limits concerning use of the XM Works Sites. While XM Works will use reasonable efforts to back up site data and make such data available in the event of loss or deletion, XM Works has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by any XM Works Site. XM Works reserves the right to mark as “inactive” and archive accounts and/or content that are inactive for an extended period of time. XM Works reserves the right to change these general practices at any time, in its sole discretion, with notice to users and the public as described in Section 1 above.
User Content Posted on the Site
You are solely responsible for the photos, profiles, messages, notes, text, information, music, video, advertisements, listings, and other content that you upload, publish or display (hereinafter, “post”) on or through XM Works, or transmit to or share with other users . You may not post, transmit, or share User Content on XM Works that you did not create or that you do not have permission to post. You understand and agree that XM Works may, but is not obligated to, review the XM Works website contents and may delete or remove (without notice) any XM Works Content or User Content in its sole discretion, for any reason or no reason, including without limitation User Content that in the sole judgment of XM Works violates this Agreement, or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users or others. You are solely responsible at your sole cost and expense for creating backup copies and replacing any User Content you post or store on XM Works or provide to XM Works.
Copyright Complaints
We respect the intellectual property rights of others and we prohibit users from uploading, posting or otherwise transmitting on the XM Works website or service any materials that violate another party’s intellectual property rights. When we receive proper Notification of Alleged Copyright Infringement, we promptly remove or disable access to the allegedly infringing material and terminate the accounts of repeat infringers as described herein in accordance with the Digital Millennium Copyright Act. If you believe that any material on the Site infringes upon any copyright which you own or control, you may send a written notification of such infringement to info@xmworks.com .
Repeat Infringer Policy
In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, XM Works has adopted a policy of terminating, in appropriate circumstances and at XM Works’s sole discretion, members who are deemed to be repeat infringers. XM Works may also at its sole discretion limit access to the XM Works website and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Websites and Content
XM Works, any XM Works Site or a third party may provide links to other websites. XM Works exercises no control whatsoever over such other websites and web-based resources and is not responsible or liable for the availability thereof or the Content, advertising, products or other materials thereon. XM Works shall not be responsible or liable, directly or indirectly, for any damage or loss incurred or suffered by any user in connection therewith. Your access and use of linked websites, including information, material, products and services therein, is solely at your own risk.
User Disputes
You are solely responsible for your interactions with other XM Works users. We reserve the right, but have no obligation, to monitor disputes between you and other users.
Disclaimers
XM Works is not responsible or liable in any manner for any User Content or Third Party Applications, Software or Content posted on XM Works or in connection with the Service, whether posted or caused by users of XM Works, by XM Works, by third parties or by any of the equipment or programming associated with or utilized in XM Works or its Service. Although we provide rules for user conduct and postings, we do not control and are not responsible for what users post, transmit or share on XM Works and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content you may encounter on XM Works or in connection with any User Content or Third Party Applications, Software or Content. XM Works is not responsible for the conduct, whether online or offline, of any user of XM Works.
XM Works and all or part of its services may be temporarily unavailable from time to time for maintenance or other reasons. XM Works assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications. XM Works is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any Site or combination thereof, including injury or damage to User’s or to any other person’s computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with XM Works, including without limitation any Mobile Client software. Under no circumstances will XM Works be responsible for any loss or damage, including any loss or damage to any User Content or personal injury or death, resulting from anyone’s use of XM Works or the Service, any User Content or Third Party Applications, Software or Content posted on or through XM Works or transmitted to Users, or any interactions between users of XM Works, whether online or offline.
XM Works, ANY PLATFORM APPLICATIONS AND THE XM Works CONTENT ARE PROVIDED “AS-IS” AND XM Works DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. XM Works CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF XM Works AND/OR THE SERVICE AND/OR ANY PLATFORM APPLICATIONS. XM Works DOES NOT REPRESENT OR WARRANT THAT SOFTWARE, CONTENT OR MATERIALS ON THE SITE, THE SERVICE OR ANY PLATFORM APPLICATIONS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SITE OR SERVICE ITS SERVERS, OR ANY PLATFORM APPLICATIONS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH SOFTWARE, CONTENT OR MATERIALS AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT, MATERIAL, DATA OR SOFTWARE (INCLUDING ANY MOBILE CLIENT) FROM OR THROUGH XM Works AND ANY PLATFORM APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND ANY DAMAGES TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT.
XM Works reserves the right to change any and all content, software and other items used or contained in XM Works and any Services and Platform Applications offered through XM Works at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by XM Works.
Limitation on Liability
IN NO EVENT WILL XM Works OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF XM Works OR ITS SERVICES, ANY PLATFORM APPLICATIONS OR ANY OF THE XM Works WEBSITE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM XM Works, EVEN IF XM Works IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, XM Works’s LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO XM Works FOR THE SERVICE DURING THE TERM OF MEMBERSHIP.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Account Termination
XM Works may terminate your membership, delete your profile and any content or information that you have posted on XM Works or through any Platform Application and/or prohibit you from using or accessing the XM Works or any Platform Application for any reason, or no reason, at any time in its sole discretion, with or without notice, including without limitation if it believes that you are in violation of any of the terms listed herein. Upon your cancellation of your membership by XM Works for violation of terms stated herein, you the user, will NOT be entitled to a refund for any membership monies paid to XM Works to date. When we are notified that a user has died, we will generally, but are not obligated to, keep the user’s account active under a special memorialized status for a period of time determined by us to allow other users to post and view comments.
Governing Law; Venue and Jurisdiction
By visiting or using XM Works and its services, you agree that the laws of the State of California, without regard to principles of conflict of laws, will govern these Terms of Use and any dispute of any sort that might arise between you and XM Works or any of our affiliates. With respect to any disputes or claims not subject to arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts of California, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non convenience with respect to, venue and jurisdiction in the state and federal courts of California.
Arbitration
YOU AND XM Works AGREE THAT, EXCEPT AS MAY OTHERWISE BE PROVIDED IN REGARD TO SPECIFIC SERVICES ON THE XM Works IN ANY SPECIFIC TERMS APPLICABLE TO THOSE SERVICES, 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 USE, XM Works AND/OR IT’S SERVICES (INCLUDING YOUR VISIT TO OR USE OF XM Works AND/OR IT’S SERVICES) SHALL BE FINAL AND BINDING ARBITRATION, except that 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, or you have otherwise violated any of the user conduct rules set forth above or in the Code of Conduct then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought.
Arbitration under this Agreement shall be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA’s Supplementary Procedures for Consumer Related Disputes ( the “AAA Consumer Rules”) (collectively the “AAA Rules”). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). If such costs are determined to be excessive in a consumer dispute, XM Works will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF USE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you related in any way to XM Works and/or its services (including your visit to or use of XM Works and/or its services) be instituted more than three (3) years after the cause of action arose.
Indemnity
You agree to indemnify and hold XM Works, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with any User Content, any Third Party Applications, Software or Content you post or share on or through the Site (including without limitation through the Share Service), your use of XM Works, your conduct in connection with XM Works or with other users of XM Works, or any violation of this Agreement or of any law or the rights of any third party.
Submissions
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about XM Works(“Submissions”), provided by you to XM Works are non-confidential and shall become the sole property of XM Works.
CANCELLATION POLICY
You may cancel your service and automatic billing at any time. Refunds are subject to the terms outlined below. To cancel your XM Trade Account, you must email a cancellation request email to sales@xmworks.com.
You will receive a cancellation confirmation verification and a confirmation number within 24 hours of your emailed request. Please print your verification notice and keep it for your records.
Your cancellation request must contain:
Your Full Name
Your XM Trade user name or login name
Your e-mail address
The reason you are canceling your service
Other
These Terms of Use constitute the entire agreement between you and XM Works regarding the use of XM Works and/or its services, superseding any prior agreements between you and XM Works relating to your use of XM Works or its services. The failure of XM Works to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision in that or any other instance. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. If any provision of these Terms of Use shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.