Subject to the terms and restrictions herein, Xomly hereby grants you a non-exclusive, non-transferable, non-sublicensable license to access and use the Services, including the underlying software proprietary to, or licensed by, Xomly (in object code format only) (the "Software"), for the limited purposes set forth in Section 2 ("Use of Services") and subject to the restrictions set forth in Section 3 ("Restrictions").
(a) You may access and use the Services and Software solely for the purposes of (i) viewing and sharing digital content (each "Collateral"); and/or (ii) using other features and functionality made available to you from time to time. Collateral may include information, data, text, music, sound, photographs, graphics, video, messages and/or other materials owned by you or licensed to you by third-party content providers;
You agree that you will not:
(a) share your logon ID, user name or password with any other party;
(b) use the Services in a way intended to improperly avoid incurring fees or exceeding usage limits;
(c) copy, distribute, sell, resell, give away, or provide access to the Software or the Website to third parties or the general public, including, without limitation, as an application service provider, service bureau or hosting services provider;
(d) sell or provide access to Collateral for a fee except under the terms of a separate agreement with Xomly;
(e) rent, lease, loan, or time-share Collateral or the use of, or access to, the Services;
(f) copy, modify, adapt, reverse-engineer or create derivative works of the Software;
(g) use the Services to upload, post, email or otherwise transmit any content or material that is unlawful, harmful, threatening, abusive, harassing, tortuous, vulgar, indecent, obscene, pornographic, defamatory, invasive of another's privacy or rights of publicity, hateful, or racially, ethnically or otherwise offensive or objectionable, harmful to minors, infringing of another’s proprietary rights, including, without limitation, copyrights, trademarks, patents and trade secrets, or damaging, corruptive or otherwise in any way harmful to the Services such as but not limited to viruses, including any software, hardware or services associated with the Services;
(h) use the communication systems available with the Services (e.g., posting comments, email) to further or make available any unsolicited or unauthorized advertising or promotional materials such as junk mail, spam, chain letters, pyramid schemes or any other form of abusive commercial solicitation; or
(i) harvest or collect personally identifiable information from the Services for use in any manner that violates governmental regulations.
(j) Non-public personal information (NPPI) is prohibited from Customer Content. Violations brought to Xomly’s attention will result in suspension of the Customer Services until Customer has deleted the prohibited Customer Content. The resumption of the Customer Services or termination of the Customer Services due to NPPI content violation(s) are at Xomly’s discretion.
(a) Xomly Intellectual Property. Xomly or Xomly’s licensors retain all ownership of, and intellectual property rights in, the Software and the Services. Except for the limited license granted to you herein, you have no right, title or interest in the Software or the Services. All rights not expressly granted herein are reserved to Xomly, including the right to charge a fee for access or use of the Services;
(b) Intellectual Property in Collateral. ownership of, and intellectual property rights in, any unmodified Collateral, are owned exclusively by the publisher of such Collateral. Any permitted modification of the Collateral is owned by the party making the modification to the Collateral, provided ownership of the unmodified Collateral remains with the publisher. You may not remove any identifications, attributions, copyright notices, or other notices or proprietary restrictions contained in any Collateral;
(c) Indemnity Obligations. You will defend, indemnify and hold harmless Xomly, Xomly's subsidiaries, affiliates, officers, employees, stockholders, agents, co-branders or other partners from and against any claim or demand, made by any third party, arising from or related to (i) the Collateral you publish or share using the Software or Services or (ii) your general use of the Software or Services, and will pay all costs and damages including reasonable attorneys' fees incurred as a result of such claim.
If you are an approved Learning Provider and provide Collateral on the SellTM site designated by you as “Learning Content," you affirm such content is educational in nature and oriented toward a business audience.
You acknowledge that Xomly does not pre-screen, monitor or endorse any Collateral or other content or materials uploaded by users and makes no claims regarding their accuracy or content. Xomly or its designees have the right (but not the obligation) in their sole discretion to refuse, remove or re-categorize any Collateral or other content. For those users that are accessing the Services at no-charge (“Free User”), if you do not access or use the Website(s) for a period of six (6) months, your content, Collateral, and/or materials uploaded may be removed.
Xomly will use commercially reasonable efforts to ensure that the Services are accessible via the internet twenty-four (24) hours a day, seven (7) days a week for all paying customers.
The Services are provided for Free Users solely at Xomly’s discretion, and Xomly reserves the right to place limits on the use including, but not limited to, the number of Presentations which can be created, the amount of audio which can be recorded, the amount of video that can be uploaded, the amount of storage you can consume, and the frequency of Collateral viewing. Certain premium services may be available for a fee, including subscription upgrades. For monthly subscription upgrade purchases, Xomly will securely charge your credit card at the initial time of purchase. Then, at the beginning of each billing cycle, Xomly will bill your credit card for monthly subscription fees corresponding to your subscription plan. You may cancel your subscription at any time by choosing the cancellation option within your account, and your subscription will terminate at that time. For annual subscription upgrade purchases, Xomly will securely charge your credit card at the initial time of purchase for twelve (12) months of service in advance. Then, at the beginning of each annual term, Xomly will bill your credit card for annual subscription fees corresponding to your subscription plan. You may cancel your subscription at any time by choosing the cancellation option within your account, and your subscription will terminate at that time. Xomly does not issue refunds for charges incurred.
THE SOFTWARE, SERVICES AND THE COLLATERAL ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. XOMLY DOES NOT WARRANT (I) THE RESULTS THAT MAY BE OBTAINED BY USING THE SOFTWARE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) AN UNAUTHORIZED PERSON WILL NEVER GAIN ACCESS TO THE CUSTOMER CONTENT OR COLLATERAL, (III) THAT THE SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR (IV) THE ACCURACY, ADEQUACY OR COMPLETENESS ANY COLLATERAL.
XOMLY SHALL NOT BE LIABLE, WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT, TORT OR BASED ON ANY OTHER LEGAL THEORY, IN ANY WAY TO YOU FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT.
XOMLY’S MAXIMUM LIABILITY FOR ANY DAMAGES, REGARDLESS OF FORM OF ACTION, SHALL NOT EXCEED THE LICENSE FEES, IF APPLICABLE, ACTUALLY PAID BY YOU TO XOMLY FOR USE OF THE SERVICES, OR OTHER AMOUNTS ACTUALLY PAID BY YOU PROCURING PRESENTATIONS USING THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVEN RISE TO SUCH LIABILITY.
You may terminate your use of the Services at any time by terminating any agreements, if applicable, between you and Xomly associated with your use of the Websites and/or discontinuing your access of the Services and destroying your access credentials (e.g., logon ID, password). No liabilities (including but not limited to refunds or credits for any fees paid for premium services) will be incurred by Xomly if you terminate your use of the Services.
If you believe in good faith that (i) Collateral or other content or material on the website infringes your copyrights, or (ii) any such notice of infringement was made falsely or mistakenly against your Collateral or other content or material, you may provide notice to Xomly’s Designated Agent for Notice of Infringement identified below.
Attention: Xomly, VP of Product Management
2751 Robidoux Road
Sandy, UT 84093 USA