Terms of Service
Last updated: January 2025
Welcome to Xclude! These Xclude Terms of Service (“Terms”) are a binding contract between you (“you”, “your” or “Customer”) and Xclude Inc. (“Xclude,” “we”, “our” and “us”) that governs your access and use of our website, product and/or services (collectively, the “Services”).
If you are agreeing to these Terms on behalf of a party that you represent (e.g. your employer, your business or another entity), you represent and warrant that: (i) you have full legal authority to bind such other party to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent.
These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access our Services, whichever is earlier (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your assent to these terms by clicking “I agree” (or similar button or checkbox) at the time you register for a Service, create an account or place an order. By accessing and/or using the Services, you are also agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the Services.
You may not access our Services, if you are our direct competitor, except with our prior written consent. In addition, you may not access our Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
Xclude reserves the right to revise, modify or update this Term at any time. Your continued use of the Services after any such revisions, modifications or updates constitutes your acceptance of any such change. If we make any material changes we will notify you by posting the revised Terms of Service on our Website or conspicuously in the Services.
1. About Xclude
Xclude offers a full-lifecycle deep learning artificial intelligence platform for computer vision, natural language processing and more. Our AI content moderators help organizations to review user-generated content (“UGC”) and excludes any content featuring competitor products or mentions.
2. Eligibility and Registration
2.1. Eligibility requirements
Before you use our Services, you must ensure that such use is in compliance with all Laws applicable to you. Your right to access the Services is revoked to the extent your use thereof is prohibited or to the extent our provision thereof conflicts with any applicable Law, rule or regulation. You are responsible for making these determinations before using the Services.
2.2. Age Requirement for Users
The Services are not targeted towards, nor intended for use by, anyone under the age of majority in any jurisdiction. As a registered user of Xclude’s Services, you represent that you are of legal age to form a binding contract.
2.3. Account registration
To access the Services and some features of the Services, you must register for an account (“Account”). When you register for your Account, you agree to provide true, accurate, current and complete information about yourself, such as name, email address, and a valid form of payment, and you also agree to provide information about yourself on a voluntary basis (“Account Information”). Account information, and our use and disclosure thereof, is subject to our Privacy Policy.
2.4. Account deactivation
We may, in our sole discretion, refuse to provide or continue providing the Services to any person or entity and change eligibility criteria at any time, including if you fail to comply with these Terms. We reserve the right to deactivate, terminate, prevent access to, disable services for, and/or delete any Accounts or access to the Services at any time at our sole discretion.
2.5. Your responsibilities
You are solely responsible for the activity that occurs on your Account, regardless of whether the activities are undertaken by you, your employees, any third party (including your contractors or agents), your licensees, or your customers. You are responsible for notifying your employees, agents, and others related to your use of the Services of the provisions of these Terms, including where these Terms are binding on them.
3. Services Subscription
3.1. Your use of the Services
You may access and use the Services, as applicable, only in accordance with these Terms, Our Policies, any applicable documentation, any agreed Additional Terms and applicable Laws. You will:
- be solely responsible for all use of the Services and documentation under your account, including the quality and integrity of your Product Catalog, your UGC and any other information made available to us by or for you through the use of the Services under these Terms and each software application or service you make available to your end users that interfaces with the Services (each, a “Customer Application”)
- not rent, lease, distribute, sell, sublicense, transfer or provide access to the Services to any third party (except to make the Services available to your end users in connection a Customer Application as permitted under these Terms) or offer them on a standalone basis
- be solely responsible for all acts, omissions and activities of anyone who accesses or otherwise uses any Customer Application (“End User”), including End Users’ compliance with these Terms, the applicable documentation, Our Policies and any agreed Additional Terms
- not interfere with or otherwise circumvent mechanisms in the Services intended to limit your use
- not reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Services, except to the extent expressly permitted by applicable Law (and then only upon advance notice to us)
- not remove or obscure any proprietary or other notices in any Service
- not use the Services for competitive analysis or to develop or build similar or competitive products or services, whether directly or indirectly through a third party
- use the Services to develop foundation models or other large scale models that compete with Xclude
- use any method to extract data from these services, including web scraping, web harvesting, or web data extraction methods, other than as permitted through the API
- not publicly disseminate information regarding the performance of the Services; (i) not introduce into Our Technology any Malicious Code or content that is illegal under any applicable law; or not encourage or assist any third party to do any of the foregoing. Our Services are not intended for us in, or association with, the operation of any hazardous environments or critical systems that may lead to serious bodily injury or death or cause environmental or property damage, and you are solely responsible for liability that may arise in connection with such use.
3.2. Third party service provider
Xclude uses Amplitude, Inc. and its affiliates as its third-party service provider for tracking customer behavior within Xclude’s AI content moderators. This data is collected to help improve our product, personalize communications and enhance user experience. No personally identifiable information (PII) is shared with Amplitude. By using the Xclude Services, you agree that Amplitude may track your interactions with the product, including message conversations with Xclude’s AI content moderators, clicks on buttons and links, time spent on specific sections of the product and other related behaviors. You agree to be bound by Amplitude’s Privacy Policy and its Terms of Service, and hereby consent to Xclude and Amplitude sharing relevant data to the minimum extent required for these purposes. Xclude is not responsible or liable for any actions taken by Amplitude during its processing of data.
4. Proprietary Rights
4.1. Xclude’s technology
We or our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the Services) and all other Xclude Materials provided by us to you. Except for the licenses expressly set forth herein, you obtain no rights under these Terms from us, our affiliates or our licensors to the Services or any related intellectual property rights owned or licensed by us.
4.2. Your Product Catalog
You consent to our use of your Product Catalog solely to provide the Services to you. Specifically:
- Purpose of Use: We will use, process, and store your Product Catalog exclusively to deliver, maintain, and improve the Services and Our Technology.
- No Transfer of Ownership: You retain all rights, title, and interest in your Product Catalog. Our use of your Product Catalog does not transfer ownership to us.
- Limited Access: Access to your Product Catalog is restricted to our personnel and authorized subprocessors who need such access to perform the Services and are bound by confidentiality obligations.
- Data Security: We implement industry-standard measures to ensure the security and confidentiality of your Product Catalog, including encryption at rest and in transit.
- No Sharing or Sale: We do not share, sell, or use your Product Catalog for any purpose outside of delivering the Services to you or improving our technology as outlined in this section.
By submitting your Product Catalog, you agree and instruct us to process it in accordance with these terms and our Privacy Policy.
4.3. Your User-generated content (“UGC”)
You consent to our use of your UGC solely to provide the Services to you. Specifically:
- Purpose of Use: We will use, process, and store your UGC exclusively to deliver, maintain, and improve the Services and Our Technology.
- No Transfer of Ownership: You retain all rights, title, and interest in your UGC. Our use of your UGC does not transfer ownership to us.
- Limited Access: Access to your UGC is restricted to our personnel and authorized subprocessors who require such access to perform the Services. All personnel are bound by strict confidentiality obligations.
- Data Security: We use industry-standard security measures to protect your UGC, including encryption at rest and in transit, to safeguard against unauthorized access, loss, or misuse.
- No Sharing or Sale: We do not share, sell, or disclose your UGC to third parties for any purposes outside of delivering the Services to you and improving our technology as described in these Terms.
- Anonymization for Improvement: Where applicable, we may anonymize or aggregate UGC to further enhance the accuracy, performance, and efficiency of our AI models and technology. Such anonymized data cannot be linked back to you or any individual.
By submitting your UGC, you agree and instruct us to process it in accordance with these terms and our Privacy Policy.
4.4. Your data compliance obligations
You represent and warrant to us that:
- you have obtained all necessary rights, releases, consents and permissions to submit all your Product Catalog and your UGC in connection with the Services and to grant the rights granted to us in these Terms, including obtaining any necessary consents required by applicable Laws to process and control your UGC for the purposes contemplated by these Terms
- you have provided any legally required privacy notices to end users of your products or services that use our Services, including ensuring such notices include accurate and complete disclosures concerning the processing activities contemplated by these Terms that comply with applicable Laws;
- you have obtained any required verifiable parental consent under the Children’s Online Privacy Protection Act (COPPA) or similar Laws
- act as the data controller for all Personal, UGC and Product Catalog data submitted to Xclude. Xclude acts as a data processor and processes these data on your behalf
- Your Product Catalog, your UGC and its submission and use as you authorize in these Terms does not contain any Malicious Code and will not violate (i) any Laws, (ii) any third-party intellectual property, privacy, publicity or other rights, or (iii) any of your or any third party’s policies or terms governing your UGC. We assume no responsibility or liability for your Product Catalog and your UGC, and you are solely responsible for your Product Catalog, your UGC and the consequences of submitting and using it with the Services.
If you are acting on behalf of a third party (e.g., as an agency, software provider, or consulting firm), you represent and warrant that you are authorized by your client(s) or other relevant third party to:
- Submit their Product Catalog and UGC to the Services
- Grant us the rights outlined in these Terms
- Ensure compliance with applicable laws, including obtaining any necessary consents for the submission and processing of your UGC
You acknowledge that it is your responsibility to ensure your clients’ compliance with these obligations, and you shall remain fully liable for any breach of these Terms caused by the submission or use of your UGC.
4.5. Feedback
If you provide any Feedback to us concerning the functionality or performance of the Services (including identifying potential errors and improvements), you hereby assign to Xclude all right, title and interest in and to the Feedback, and Xclude is free to use such Feedback without payment or restriction.
4.6. Trademarks
You grant us permission to include your name, logos, and trademarks in our promotional and marketing materials and communications.
4.7. Third party software products
Third-party software products are licensed to you by Xclude subject to the terms and conditions of any third-party software manufacturer or developer license agreement applicable to the particular third-party software product. As the third-party software products are created, developed, and provided by a third-party, Xclude can only provide such license rights as permitted by the third party.
4.8. Open source materials
The Services may contain open source materials. You acknowledge that specific terms required by those open source materials may apply to their use. Xclude shall make reasonable efforts to include these terms in applicable documentation; however, these terms will not: (a) impose any additional restrictions on your use of the Services, or (b) negate or amend Xclude’s responsibilities with respect to the Services.
5. Fees, Payment and Suspension of Xclude Services
5.1. Subscriptions
Xclude offers various options and subscriptions plans to its clients, including free trials and paid plans. These options and plans, including relevant pricing, are available at https://www.xclude.ai/pricing. The pricing of these plans are in U.S. dollars and all payments will be made in U.S. dollars.
5.1.1. Free trials
Free trials are non-paid access of the Xclude Services subject to use restrictions (maximum limits to the number of visual analysis units and metadata analysis units). Restrictions for such trials are set forth at https://www.xclude.ai/pricing#faq. You may at any time terminate your free trial or upgrade to a paid plan.
5.1.2. Paid plans
These paid plans have lower use restriction limits than the free trials. Premium features may also be added to these plans. Your paid subscription shall be due and payable either on a monthly or yearly basis in advance from the date of your first paid subscription and will be automatically renewed thereafter on the same basis, subject to the full payment in advance of the fees due. You may at any time terminate your paid plan and you will have the right to continue to access and use the Xclude Services through the end of the subscription plan for which you have paid. However, Xclude shall not reimburse you for any unused Fees paid for a started month or year, even on a pro rata basis. It is your responsibility to anticipate the termination of the plan to make it effective at the most convenient time.
5.1.3. Automatic renewal
Under a paid plan, the subscription will continue and automatically renew at Xclude’s then-current price for such Subscription until terminated in accordance with this Term. The frequency at which the subscription renews (i.e., monthly, annually, etc.) will be designated at the time as you sign up for the subscription. By subscribing, you authorize Xclude to charge the payment method designated in your account now, and again at the beginning of any subsequent subscription period. Upon renewal of the subscription, if Xclude does not receive payment, (i) you shall pay all amounts due on your account upon demand and/or (ii) you agree that Xclude may either terminate or suspend the subscription and continue to attempt to charge the designated payment method until payment is received (upon receipt of payment, the subscription will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
5.2. Fees
You will pay Xclude the fees for the Xclude Services upon checkout, and thereafter, at such intervals in accordance with your selected plan at checkout (“Fees”). Fees for plans listed above do not include the cost of equipment and Internet access enabling use of the Xclude Service, the costs of which shall be borne by yourself. All Fees are due in advance of each Subscription Term. Payment may be made by credit card. Subscriber authorizes Xclude to charge the credit card you provide to Xclude for any and all costs and amounts that you owe Xclude for the Xclude Services, at the time such amounts are due. You shall maintain complete, accurate and up-to-date billing and contact information. In the event you exceed number of transactions for which applicable Fees have been paid, you will be invoiced for such overage in accordance with the then-current overage fee rates in arrears, set forth at https://www.xclude.ai/pricing#faq. Xclude may increase the applicable Fees upon the commencement of any Renewal Order Term (as defined below).
5.3. Third party service provider
Xclude uses Stripe, Inc. and its affiliates as its third-party service provider for payment services (e.g. card acceptance, merchant settlement, and related services) (“Third Party Service Provider”). If you make a purchase on the Xclude Services, you will be required to provide your payment details and any additional information required to complete your order directly to our Third Party Service Provider. You agree to be bound by Stripe’s Privacy Policy and its Terms of Service, and hereby consent and authorize Xclude and Stripe to share any information and payment instructions you provide with one or more Third Party Service Provider(s) to the minimum extent required to complete the transactions. Please note that online payment transactions may be subject to validation checks by Xclude’s Third Party Service Provider and your card issuer, and Xclude is not responsible if your card issuer declines to authorize payment for any reason. For your protection, Xclude’s Third Party Service Provider uses various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize Third Party Service Provider to verify and authenticate your payment information. Your card issuer may charge you an online handling fee or processing fee. Xclude is not responsible for this. In some jurisdictions, our Third Party Service Provider may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
5.4. Billing information
You must provide current, complete and accurate information for your Account and Billing Information, and must promptly update all such information in the event of changes (such as a change in billing address, credit card number, or credit card expiration date). You must promptly notify us or our Third Party Service Provider if your payment method is canceled (e.g., for loss or theft) or otherwise inoperable. Changes to such information can be made in your account settings.
5.5. Taxes and invoicing
All Fees owed by you in connection with this Term are exclusive of, and Subscriber shall pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon you in connection with this Term, except for employment taxes and taxes based on Xclude’s income. If you believe that Xclude has incorrectly billed you, you must notify Xclude no later than sixty (60) days after the due date on the first invoice in which the issue appeared.
5.6. Late payments
In the event of any delay in payment, Xclude will have the right to recover interest on late payments at a monthly rate of 1.5% (or the highest permitted by applicable law, if lower), any collections fees, and other amounts as allowed by law. Xclude reserves the right (in addition to any other rights or remedies Xclude may have), upon written notice, to discontinue the Xclude Services and immediately suspend your access to the Xclude Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. You agree to pay all Fees associated with your paid plan, even in the event that any of your emails may be blocked by a third party or may otherwise not reach their recipient, as intended by yourself.
6. Confidentiality
6.1. Definition
To the extent you receive or possess any nonpublic information from us that is designated confidential or, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential, such information is our “Confidential Information” and must be handled according to these Terms. Confidential Information includes but is not limited to: (a) nonpublic, confidential, proprietary or competitively sensitive information, including information about our technology, customers, business plans, marketing and sales activities, finances, operations and other business information; and (b) the existence and content of our discussions or negotiations with you regarding your Account and/or use of the Services. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of these Terms; (ii) can be shown by documentation to have been known to you at the time of your receipt of such information from us; (iii) is received from a third party who did not acquire or disclose the information by a wrongful or tortious act or by violating the rights of us or third parties; or (iv) can be shown by documentation to have been independently developed by you without reference to our Confidential Information.
6.2. Confidentiality obligations
You may not use Confidential Information except in connection with your use of the Service as permitted under these Terms or as separately authorized in a signed writing by us. You agree to not disclose Confidential Information (i) during the Subscription Term; or (ii) after you cease using the Services and these Terms otherwise no longer apply. You will take all reasonable measures to avoid disclosure or unauthorized use of Confidential Information, including at least the measures you take to protect your own confidential information of a similar nature.
6.3. Beta releases
From time to time, we may invite you to try new products or services that are not generally available (each such trial invitation, a “Beta Release”). You may accept or decline any such trial in your sole discretion. Any Beta Release will be designated as alpha, beta, pilot, limited release, developer preview, non-production or other pertinent description. A Beta Release is provided for evaluation purposes only and not for production use, is not supported, may contain bugs or errors, and may be subject to additional terms. Xclude may discontinue a Beta Release at any time in its sole discretion. Xclude owns all rights, title and interest, including all intellectual property rights, in and to all Beta Releases and Feedback on Beta Releases.
7. Security and Data Privacy
7.1. Security and certifications
We implement and maintain physical, technical and administrative security measures designed to protect your data from unauthorized access, destruction, use, modification or disclosure. We also maintain a compliance program that includes independent third-party audits and certifications.
7.2. Privacy
We collect certain data and information about you in connection with your use of the Services and otherwise in connection with these Terms. We collect and use all such data and information in accordance with to our Privacy Policy, which you acknowledge. We are always striving to improve the Services and, in order to do so, we use analytics techniques to better understand how our Services are being used. These techniques and the type of data collected is also detailed in our Privacy Policy.
7.3. Your security obligations
You will utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords, and verifying the trustworthiness of persons who are entrusted with account access information. You are solely responsible for any unauthorized access to your Account, and must notify Xclude immediately of any such unauthorized access upon becoming aware of it.
7.4. Security incidents
You will notify Xclude if and when you learn of any security incidents or breaches affecting the Services, including unauthorized access to your Account or Account credentials, and will aid in any investigation or legal action that is taken by authorities and/or Xclude to investigate and cure the security incident or breach to the extent caused by your Account or your use of the Services.
8. Temporary Suspension
8.1. Suspension
We may suspend your right to access or use any portion of the Services immediately upon notice to you if we determine: (a) you or your End User’s use of the Services (i) poses a security risk to the Services or any third party; (ii) could adversely impact our systems, the Services or the systems or content of any other Xclude customer; (iii) could subject us, our affiliates or any third party to liability; or (iv) could be fraudulent; (b) you are, or any End User is, in breach of these Terms; (c) you are in breach of your payment obligations under Section 5; or (d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
8.2. Effect of suspension
If we suspend your right to access or use any portion or all of the Services: (a) you remain responsible for all fees and charges you incur during the period of suspension; and (b) you will not be entitled to any service credits under any service level agreements for the period of the suspension.
9. Term & Termination
9.1. Term
These Terms will commence on the Effective Date and continue until terminated in accordance with the Terms. Each subscription will have an initial term of one (1) year or one (1) month, as dictated by the plan that you purchase (the “Initial Order Term”), and will automatically renew for successive terms of the same period as the Initial Order Term (each, a “Renewal Order Term” and collectively with the Initial Order Term, the “Order Term”). The term of each subscription will be as set forth in the applicable subscription plan and will automatically renew for successive terms of the same duration, in accordance with the terms and conditions of the subscription plan.
9.2. Termination
Either party may terminate this Terms or specific subscription plan upon written notice if the other party materially breaches the Terms or the Terms of the subscription plan and does not cure such breach within thirty (30) days after written notice of such breach. Further, either party may terminate these Terms if the other party is declared insolvent, admits its inability to pay its debts when due, or files for, or otherwise undergoes, bankruptcy. Upon the expiration or termination of these Terms or specific subscription plan for any reason any amounts owed to Xclude under these Terms will become immediately due and payable.
9.3. Survival
All provisions of these Terms which by their nature should reasonably be expected to survive termination will survive termination, including Sections 4 (Proprietary Rights), 5 (Fees, Payment and Suspension of Xclude Service), 7 (Confidentiality), 7 (Security and Data Privacy), 9 (Term & Termination), 11 (Indemnification), 12 (Limitation of Liability), 13 (Dispute Resolution and Arbitration) and 14 (Miscellaneous Provisions).
10. Warranty Disclaimer
THE SERVICES, INCLUDING WITHOUT LIMITATION ANY PRODUCT CATALOG AND CONTENT DELIVERED AS A PART THEREOF, ARE PROVIDED ON AN “AS IS” AND ON AN “AS AVAILABLE” BASIS. XCLUDE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE WEBSITE AND SERVICES AND ALL PRODUCT CATALOG AND CONTENT DELIVERED IN CONNECTION THERETO, INCLUDING BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE; OR (C) ANY WARRANTY OR GUARANTY RELATING TO AVAILABILITY, ACCURACY, ERROR RATE, SYSTEM INTEGRITY OR UNINTERRUPTED ACCESS. WE DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
11. Indemnification
11.1. Indemnification by us
We will defend you from and against any third-party claim, demand, suit or proceeding alleging that the Services infringe or misappropriate such third party’s intellectual property rights (“Infringement Claim”). We will indemnify you for any Losses finally awarded by a court of competent jurisdiction or settlement amounts approved by us for an Infringement Claim, provided that we have received from you (i) prompt written notice of the Infringement Claim; (ii) reasonable assistance in the defense and investigation of the Infringement Claim, including providing us a copy of the Infringement Claim, all relevant evidence in your possession, custody or control, and cooperation with evidentiary discovery, litigation and trial, including making witnesses within your employ or control available for testimony; and (iii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of the Infringement Claim. If your use of the Services has become, or in our opinion is likely to become, the subject of an Infringement Claim, we may at our expense: (a) procure for you the right to continue using the Services as set forth in these Terms; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms, or, if applicable, terminate the Services that are the subject of any Infringement Claim and refund you any unused pre-paid fees. We will have no liability or obligations under this Section 11.1 with respect to any Infringement Claim (1) arising out of your use of the Services in breach of these Terms; (2) arising out of the combination, operation or use of the Services with other applications, hardware, products or services where the Services would not themselves be infringing; or (3) arising from your continued use of the Services after we have notified you that such use is infringing (the foregoing, collectively, the “Excluded Claims”). We will have no liability in respect of Infringement Claims related to free services.
11.2. Indemnification by you
You are responsible for your use of the Services, and you will defend, indemnify and hold harmless us and our employees, officers, directors, agents, contractors, and representatives from all Losses (including reasonable attorneys’ fees and costs) that arise from or relate to: (i) your or any End Users’ breach of Section 3 (Your Services Subscription); (ii) a Customer Application, including, without limitation, any claims that a Customer Application, or your or any End User’s use of a Customer Application, infringes or misappropriation of a third party’s intellectual property rights (including personality, publicity or privacy rights); (iii) breach of these Terms or violation of applicable Law by you; (iv) your gross negligence or willful misconduct; (v) Your Product Catalog and your UGC (including your making your Product Catalog and your UGC available to others through the Services); or (vi) any claim that your access to or use of the Services infringes any third party’s rights, including any Excluded Claim but not including any claims for which we indemnify you under Section 11.1 above. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, without limiting your indemnification obligations with respect to that matter, in which event you will make best efforts to assist and cooperate with us in defending the matter at your expense.
12. Limitation of Liability
12.1. Consequential damages waiver
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, GOODWILL, LOST OPPORTUNITY COSTS, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE WEBSITE AND SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
12.2. Liability cap
TO THE FULLEST EXTENT PERMITTED BY LAW, OUR AGGREGATE LIABILITY TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR TO THE SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, IS LIMITED TO THE AMOUNT PAID OR PAYABLE BY YOU UNDER THESE TERMS IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM.
12.3. Risk allocation
Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties or exclusion of damages is intended to and does allocate the risks between the parties under these Terms. This allocation is an essential element of the basis of the bargain between you and us. Each of these provisions is severable and independent of all other provisions of these Terms. The limitation in this section will apply even if any limited remedy fails for its essential purpose.
13. Dispute Resolution and Arbitration
13.1. Arbitration
In the interest of resolving disputes between you and Xclude in the most expedient and cost-effective manner, and except as described in Section 14.7, you and Xclude agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms, if applicable. You understand and agree that, by entering into these Terms, you and Xclude are each waiving the right to a trial by jury or to participate in a class action or class arbitration.
13.2. Arbitration rules
Any arbitration between you and Xclude will be administered by a sole arbitrator in accordance with JAMS Alternative Dispute Resolution Services (with any successor organization, “JAMS”) pursuant to its Comprehensive Arbitration Rules and Procedures (“JAMS Rules”). The JAMS rules and filing forms are available online at http://www.jamsadr.com. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. Because your contract with Xclude, these Terms, and this Arbitration Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted.
13.3. Arbitration requirements
Any arbitration hearing will take place at a location to be agreed upon in Miami, Florida, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; or (b) through a non-appearance-based telephone hearing. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules. In that case, you agree to reimburse Xclude for all monies previously disbursed by it that are otherwise your obligation to pay under the JAMS Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
13.4. Enforceability
If any portion of this Section 13 is found to be unenforceable, then that portion will be null and void and the remainder of this Section 13 will reasonably remain in effect. In such an event, if Section 13 cannot reasonably remain in effect as a whole, you and Xclude agree that the exclusive jurisdiction and venue described in Section 14.4 will govern any action arising out of or related to these Terms.
14. Miscellaneous Provisions
14.1. Updates and modifications
Xclude reserves the right to update, change or otherwise modify these Terms at any time and in Xclude’s sole discretion. If Xclude updates these Terms, Xclude may provide notice of such updates, such as by sending an email notification to the email address listed in your Account and/or updating the “Last Updated” date at the beginning of these Terms. Updates will be effective on the date specified in the notice. By continuing to use or access the Services after the date specified in the notice or updated Terms, you are agreeing to accept and be bound by the updated Terms and all of the terms incorporated therein. If you do not agree to the updated Terms, then you may not continue to use the Services and your sole and exclusive remedy is to deactivate your Account and otherwise discontinue use of the Website and/or Services.
14.2. General
These Terms, including all documents expressly incorporated by reference herein, constitute the entire agreement between the parties with respect to the subject matter hereof. Any use of the singular will be reasonably construed as if it also includes the plural, and vice versa. If not already specified, any use of “including” or “such as” will be construed to mean “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself.
14.3. Assignment
You may not assign, transfer or delegate these Terms or any of your rights or obligations under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. Any attempt to assign or transfer these Terms except as expressly provided above will be null and void. We may assign, transfer or delegate these Terms or our rights or obligations under these Terms without notice or consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for compliance with these Terms. Subject to the above, these Terms will be binding upon and inure to the benefit of the parties and their respective successors and assigns.
14.4. Governing law
These Terms and any dispute related thereto are governed by the Laws of the State of Florida without regard to conflict of laws provisions thereof. You and Xclude submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Miami-Dade County, Florida for resolution of any lawsuit or court proceeding permitted under these Terms.
14.5. Injunctive relief; Enforcement
Notwithstanding the provisions of Section 13 (Dispute Resolution and Arbitration) and 14.4 (Governing Law), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
14.6. Notice
You must send notices by certified U.S. Mail or by Federal Express (signature required and return receipt requested) to: Xclude Inc., 390 NE 191st St, STE 8610, Miami, FL 33179 United States. You agree to receive electronic notices from us, which will be sent by email to the primary email address then associated with your Account. Notices are effective on the date on the return receipt or, for email, when sent. You are responsible for ensuring that the email address associated with your Account is accurate and current. Any email notice that we send to that email address will be effective when sent, whether or not you actually receive the email.
14.7. Consent to electronic communications
By using the Services, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
14.8. Relationship of the parties
The parties are independent contractors with respect to one another, and nothing in these Terms will create any association, partnership, joint venture or agency relationship between the parties. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
14.9. Force majeure
Xclude will not be liable for any delay or nonperformance under these Terms due to events which are beyond Xclude’s reasonable control such as a strike, blockade, war, act of terrorism, natural disaster, quarantine, epidemic, pandemic, failure or diminishment of power or telecommunications or data networks or services or other unforeseen change in circumstances.
14.10. No third party beneficiaries
These Terms do not create any third-party beneficiary rights in any individual or entity that is not a party to these Terms.