End-User License Agreement
Xyberhome requires that you accept the following End-User License Agreement before installation can proceed:
Date of Last Revision: 26th March 2009
You may not use the Xyberhome Service if you are under 13. If you are between the ages of 13 and 18, we strongly suggest that you seek parental consent to use the Xyberhome Service.
Registration; Account Security
When you register for and use the Xyberhome Service, you will be asked to provide some personal data about yourself ("User Data"). Your User Data must be accurate and current at all times. You are solely responsible for maintaining the security of your account. This means, for example, that you may not share your password or let anyone else access your account. If you have reason to believe that your account is no longer secure, please let us know immediately.
By using or accessing the Xyberhome Service, you represent, warrant and agree that you will not:
* attempt to exceed the use of provided up-, download and store capacities granted to you by our free or paid services;
* do anything that could disable, overburden or impair the proper working of the Xyberhome Service;
* use any robot, spider, scraper or other automated means to access the Xyberhome Service;
* send spam or any other unauthorized advertisements or solicitations through or using the Xyberhome Service;
* harvest, collect or use addresses, phone numbers or email addresses or other contact information (collectively "Contact Information") of users of the Xyberhome Service without consent from such users;
* solicit private information (including social security numbers, credit card numbers and passwords) from users of the Xyberhome Service;
* provide any false personal information in your profile, create more than one profile, transfer your profile, create a profile for anyone other than yourself or create a page without authorization;
* offer any contest, sweepstakes, coupon or other promotion through the Xyberhome Service without our prior written consent;
* intimidate or harass any user;
* do anything that is illegal, infringing, fraudulent, malicious or could expose Xyberhome or the Xyberhome Service users to harm or liability; or
* attempt, encourage or facilitate any of the above.
* You are solely responsible for the User Content that you Post on or through the Xyberhome Service. By using or accessing the Xyberhome Service, you represent, warrant and agree that you will not Post:
* User Content that violates the law or anyone's rights, including intellectual property ("IP") rights or other proprietary rights (such as rights of publicity and privacy);
* any contact information or private information of any third party;
* false, misleading or fraudulent information;
* any material that contains software viruses or any other computer code designed to interrupt, destroy, or limit the functionality of any computer or telecommunications equipment;
* alcohol-related or other mature content on Pages on the Xyberhome Service that have not set appropriate age based restrictions (based on the country in which the page will be viewable);
* User Content that is threatening, hateful, racially or ethnically offensive, or that depicts nudity, pornography or graphic or gratuitous violence, or anything else that we may consider offensive.
* Xyberhome does not pre-screen, review, edit or approve any User Content. Xyberhome may, in its sole discretion, remove or disable access to any User Content.
* User Content" means any photos, text, link, audio, video, designs, ads and anything else that you Post on or through the Xyberhome Service. "Post" means to upload, download and share, store, link to or otherwise make available on or through the Xyberhome Service.
We respect the IP rights of others and we prohibit users from posting User Content that violates another party's IP rights. When we receive a proper claim of IP infringement, we promptly remove or disable access to the allegedly infringing User Content. We also terminate the accounts of repeat infringers in appropriate circumstances. If you believe that User Content on the Xyberhome Service infringes your IP rights, please inform us immediately under IPclaim@xyberhome.com. All IP claims can be made through that page, including any copyright claims, which will be handled in accordance with the Digital Millennium Copyright Act. If you are a user whose User Content was removed due to alleged copyright infringement, and you believe the removal was mistaken, please address us under ReIPclaim@xyberhome.com.
Your Privacy Practices
We respect the privacy rights of third parties, and you must do so as well on the Xyberhome Service. If you collect, access or use information relating to any user of the Xyberhome Service (including information contained in any user profile) you must obtain consent from the user and make it clear to the user that the collection, access and use is being carried out by you and not Xyberhome.
Ownership; Proprietary Rights
Except for User Content and Applications/Connect Sites, all materials, content and trademarks on the Xyberhome Service are the property of Xyberhome and/or its licensors and are protected by all relevant IP laws and other proprietary rights (including copyright, trademark, trade dress and patent laws) and any other applicable laws. Without limiting the foregoing, XYBERHOME, the X LOGO, and all related logos, are trademarks of Xyberhome. Except as expressly authorized by Xyberhome in writing, you agree not to use, sell, license, distribute, copy, publish, stream, publicly perform or display, transmit, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works or otherwise make unauthorized use of the materials, content or trademarks.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information that you provide to Xyberhome ("Submissions"), are non-confidential and non-proprietary. Xyberhome will be entitled to the unrestricted use of any such Submission for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
User Disputes; Complaints
You agree not to hold Xyberhome responsible or liable for the User Content or actions of third parties (including your interactions with users) on or relating to the Xyberhome Service. This includes transactions conducted on the Xyberhome Service as well as the collection, handling and sharing of personal information that you provide to third parties. If you have a dispute with a third party relating to the Xyberhome Service, you release Xyberhome and its directors, officers, employees and agents (collectively, the "Xyberhome Entities") from any claims, causes of action and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
If you believe that the Xyberhome Service or Xyberhome's business practices are in any way unfair, fraudulent or unlawful, you agree to bring it to the attention of Xyberhome's legal department. If you do not report the issue or continue using the service after discovering the issue, you expressly waive the right to claim that the Xyberhome Service is unfair, fraudulent or unlawful with respect to that issue.
You agree to indemnify and hold Xyberhome Entities harmless from and against any claim or cause of action brought by a third party as well as any related damages, costs and expenses (including reasonable attorneys' fees) ("Claim") arising out of or related to your (a) use of the Xyberhome Service or any of the applications, features, content or materials related thereto; (b) violation of these Terms; (c) violation of the rights of any other person or entity; or (d) breach of the representations, warranties and covenants made by you herein. Xyberhome reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Xyberhome, and you agree to cooperate with Xyberhome's defense of these Claims.
USE OF THE XYBERHOME SERVICE IS AT YOUR OWN RISK. THE XYBERHOME SERVICE, XYBERHOME WEBSITES AND ALL APPLICATIONS, FEATURES, CONTENT AND MATERIALS MADE AVAILABLE ON, IN CONJUNCTION WITH OR THROUGH THE XYBERHOME SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, XYBERHOME, ITS SUPPLIERS, LICENSORS AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. WITHOUT LIMITING THE FOREGOING, XYBERHOME, ITS SUPPLIERS, LICENSORS AND PARTNERS DO NOT WARRANT THAT THE XYBERHOME SERVICE WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE XYBERHOME SERVICE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
XYBERHOME IS NOT RESPONSIBLE OR LIABLE FOR, AND DOES NOT APPROVE OR ENDORSE ANY THIRD PARTY CONTENT, MATERIALS, WEBSITES OR APPLICATIONS MADE AVAILABLE ON OR THROUGH THE XYBERHOME SERVICE (COLLECTIVELY, "THIRD PARTY MATERIALS"). WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE FOR THE CONTENT, ACCURACY, AVAILABILITY, OFFENSIVENESS, OPINIONS, RELIABILITY, PRIVACY PRACTICES OR OTHER POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS, AND WE CANNOT AND DO NOT GUARANTEE THAT THIRD PARTY MATERIALS WILL COMPLY WITH THE RESTRICTIONS, CONDITIONS OR OBLIGATIONS THAT WE REQUIRE. IF YOU DECIDE TO USE OR ACCESS THIRD PARTY MATERIALS, YOU DO SO AT YOUR OWN RISK AND YOU MAY BE REQUIRED TO AGREE TO TERMS OF SERVICE, PRIVACY AND DATA GATHERING PRACTICES AND OTHER POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS. PLEASE REVIEW ALL SUCH TERMS AND POLICIES CAREFULLY.
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 MIGHT HAVE ADDITIONAL RIGHTS.
Limitation on Liability
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL XYBERHOME ENTITIES OR THEIR LICENSORS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR EXEMPLARY DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA, THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE XYBERHOME SERVICE, THE XYBERHOME WEBSITES OR ANY APPLICATIONS, FEATURES, CONTENT OR THIRD PARTY MATERIALS MADE AVAILABLE ON, IN CONJUNCTION WITH OR THROUGH THE XYBERHOME SERVICE, EVEN IF XYBERHOME OR A XYBERHOME AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, XYBERHOME'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY TO YOU OF XYBERHOME ENTITIES OR OF THEIR LICENSORS OR SUPPLIERS FOR ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE XYBERHOME SERVICE, INCLUDING WITHOUT LIMITATION YOUR INTERACTIONS WITH OTHER USERS OF THE XYBERHOME SERVICE (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, TO XYBERHOME DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM OR $100, WHICHEVER IS GREATER.
Termination and Changes to the Xyberhome Service
We may terminate your account on the Xyberhome Service, delete your profile and any User Content you have Posted on or through the Xyberhome Service, and/or prohibit you from using or accessing the Xyberhome Service (or any portion thereof) for any or no reason, at any time in our sole discretion, with or without notice. Further, we reserve the right to change any aspect or feature of the Xyberhome Service at any time without notice. The following sections will survive any termination of your use of the Xyberhome Service: Prohibited Conduct, User Content, Your Privacy Practices, Gift Credits, Ownership; Proprietary Rights, Licenses, Submissions, User Disputes; Complaints, Indemnity, General Disclaimers, Limitation on Liability, Termination and Changes to the Xyberhome Service, Arbitration, Governing Law; Venue and Jurisdiction and Other.
Except as set forth in the paragraph below, you agree that all claims and disputes between you and Xyberhome that arise out of or relate in any way to the Terms or your use of the Xyberhome Service will be resolved either by (a) binding arbitration by a single arbitrator in New York, NY or (b) binding non-appearance based arbitration conducted by telephone, online or based solely on written submission. Such arbitration will be administered by Judicial Arbitration and Mediation Services ("JAMS") (see www.jamsadr.com) pursuant to its Comprehensive Arbitration Rules. The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction.
With respect to any claims or disputes you intend to bring on behalf of a class, you agree to arbitrate whether a class could be certified before bringing such action in a court of law. If the arbitrator refuses to certify the class, you will continue to resolve your individual claims or disputes through binding arbitration. If the arbitrator finds that a class should be certified, you may file the class action in a court of law provided you waive any right to a trial by jury. Claims for injunctive or other equitable relief may also be brought in a court of law.
Governing Law; Venue and Jurisdiction
You agree that all claims and disputes between you and Xyberhome that arise out of or relate in any way to the Terms or your use of the Xyberhome Service will be governed by the laws of the State of New York (and United States federal laws applicable therein), without regard to principles of conflict of laws. You further agree that you will bring any claims or disputes that are not subject to arbitration (as set forth above) in, and you submit to the exclusive jurisdiction of, the state and federal courts located in New York, NY.
The "Xyberhome Service" means the features, services and properties that Xyberhome makes available through (a) www.Xyberhome.com or any other Xyberhome-branded or co-branded website (including, without limitation, any and all sub-domains and all international, mobile versions and successors thereof), (b) the Xyberhome Platform and (c) other media, devices or networks now existing or later developed. Unless otherwise specified, the terms "includes," "including," "e.g.," "for example," and other similar terms used herein are deemed to include the term "without limitation" immediately thereafter. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision in that or any other instance. If, for any reason, any provision of these Terms or portion thereof is rendered invalid or unenforceable, the remainder of these Terms will remain in full force and effect and will be enforced to the maximum extent permissible so as to effect the intent of the parties. An arbitrator or court will substitute or rewrite any invalid or unenforceable term or provision to make such term or provision valid and enforceable. All communications and notices to be made or given pursuant to these Terms will be in the English language. You consent to receiving communications and notices from Xyberhome at the email address you provide in registering for the Xyberhome Service or otherwise elect in your account settings. These Terms constitute the entire agreement and supersede any prior agreement between you and us regarding your use of the Xyberhome Service.
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