The terms “XcelABLE,” “we,” “us,” or “our” refer to XcelABLE, and include our affiliates, subsidiaries and sub-licensees.
- Types of Content. As used in this Agreement, “Content” means, collectively, the text, data, graphics, images, scripts, photos, video files, audio files, and all meta data made available through the Sites, regardless of who created or uploaded the Content. Unless otherwise specified, the term Content refers to all Content, including but not limited to the following categories of Content:
“User Content” means, collectively, the Content which you and other users of our Sites (“Users”) create and/or upload to the Sites, and which is intended to be visible to others. XcelABLE is under no obligation to allow User Content. User Content includes users’ comments. We reserve the right to remove and permanently delete any third-party Content from the Sites without notice. Unless otherwise specified, XcelABLE does not pre-screen, edit, or fact-check User Content.
” XcelABLE Content” means the Content we create or have created for us, and which we upload to the Sites.
“Third-party Content” means Content created by a third party that is uploaded to the Sites or information that is in the public domain which we display on our Site. We reserve the right to remove and permanently delete any Third-party Content from the Sites without notice. Unless otherwise specified, XcelABLE does not pre-screen, edit or fact-check Third-party Content.
- User Content. We may periodically invite Users to submit User Content either in the form of comments posted to other Content; responses to surveys, questionnaires or contests; or Content such as text, comments, videos, images, audio files, etc., created by Users and submitted to XcelABLE.
Unless otherwise specified, XcelABLE does not pre-screen, edit, or fact-check User Content.
You understand that any User Content you find on or through our Site is the sole responsibility of the User who originated such Content. By displaying User Content, XcelABLE does not assume any liability for that Content. XcelABLE reserves the right to display, refuse to display, or modify User Content submitted to us. Users agree that they will not market competing services to other Users identified through the Site.
While you retain your rights to your User Content, by submitting User Content to XcelABLE you grant XcelABLE a royalty-free, worldwide, perpetual, sub-licensable, transferable license to use, display, distribute, publicly perform, modify and reproduce your User Content in any manner and by any means, whether now known or hereafter devised, whether electronic or otherwise.
XcelABLE reserves the right to remove or move any User Content at any time, without notice to the User who created or uploaded such User Content and for any reason. We are not obligated to accept, display, maintain or monitor any User Content whether it complies with our guidelines below, or not. Our failure to maintain or monitor any User Content does not give you any right to make a claim against us.
By submitting User Content to XcelABLE you represent and warrant that you own the copyrights, trademarks or other forms of intellectual property in connection with that Content, or have the right to upload it to our site; and that it is original and has not previously been published elsewhere, unless it is clearly quoted or appropriately referenced. You further represent and warrant that any text, photographs, videos, audio recordings or quotes in the Content you submit have not been altered in any way other than for clarity or brevity, unless you clearly notify XcelABLE of such changes at the time you submit Content to XcelABLE. You also represent and warrant that no User Content that you submit violates the rights of any third party. If you do not have the right to submit such Content for our use, it may subject you to liability.
Users agree that they will not submit User Content that violates our rules set forth in more detail in Section 12, below.
While not User Content, Users may also submit ideas and questions to us that are not visible to others. Any and all ideas, suggestions and the like provided by you with respect to the Sites will be the property of XcelABLE. You hereby assign to XcelABLE all right, title and interest worldwide in such ideas or suggestions and any related intellectual property rights, and you agree to assist XcelABLE, at XcelABLE’s expense, in perfecting and enforcing any such rights.
- XcelABLE Content and Third-party Content. Except for User Content, XcelABLE, its advertisers, sponsors and licensors own all right, title and interest, including all worldwide intellectual property rights in: the Sites, the organization, compilation, look and feel of the Sites, advertisements appearing on or linked to from the Sites, trademarks, service marks and logos contained on the Sites and all other code, scripts, data and meta data appearing on, or incidental to the storage and display of the Content. The Sites and all Content, including the layout and display features of User Content, and the layout and design of any public information that we display are collectively referred to as “the IP.”
You may access and use the IP solely for your own personal, non-commercial use. You may not transfer, assign, sublicense or re-license this right of access and use to anyone without our prior written consent. This right of access and use does not convey any ownership rights whatsoever; it is merely a limited personal license exclusive to you and to you only.
XcelABLE Content and third-party Content that is dated is current only as of that date. All of the IP, except User Content, and where otherwise noted, are under copyright to XcelABLE or its third-party Content providers. You may not remove, alter or conceal any copyright, trademark, service mark or other proprietary right notice incorporated in or accompanying the IP, without our prior written consent.
You may not sell, publish, distribute, retransmit, rearrange, modify, prepare derivative works based on, perform, display, broadcast, sell, license, provide others with access to the Sites, or otherwise exploit the IP without our prior written consent.
No Content on our site may be scrubbed, framed, mined, copied, reproduced, republished, uploaded, posted, transmitted, distributed, scraped, harvested, spidered and/or exploited in any way, including by email or other electronic means for commercial use without proper license agreements with XcelABLE. Such use of the Content is considered theft and may be subject to prosecution.
You agree not to create abstracts from, scrape, harvest or extract, or display headlines from our Content for use on another website or service. You are invited to post short excerpts from our Content provided that you link to the location on our Site of the Content you have excerpted. Except in that limited situation, you agree not to post any Content from the Sites to other websites, weblogs, newsgroups, mail lists or electronic bulletin boards, without our prior written consent.
All rights not expressly granted herein are reserved. Except as otherwise required by applicable law, any reproduction, distribution, modification, retransmission or publication of any copyrighted material is strictly prohibited without our prior written consent.
- Third-party Links, and Links to XcelABLE’s Sites from third parties. We may provide links to other websites or resources over which XcelABLE does not have control (“External Websites”). Such links do not constitute an endorsement by XcelABLE of those External Websites. You acknowledge that XcelABLE is providing these links to you only as a convenience, and further agree that XcelABLE is not responsible for the content of such External Websites or any business dealings you may have with such External Websites. Your use of External Websites is subject to the terms of service and privacy policies located on the linked External Websites.
Certain other websites may link to our Sites. You may provide links to our Sites from your website as long as you do not link to our Sites by any means that give visitors to your own website the impression that you are linking to pages that are within your own website, or that XcelABLE endorses your website, sponsors your website, or is in any way affiliated with your website. You may not attribute a link on your website to our Sites and then link somewhere else. Do not frame any Content or other materials from our Sites or otherwise present the Content or other materials as your own.
- Third-party intellectual property rights. XcelABLE respects the intellectual property of others, and we ask you to do the same. If you believe that your work has been copied on the Sites in a way that constitutes copyright infringement, please provide our copyright agent with the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
a description of the copyrighted work that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Sites;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
If you believe someone has accessed the Site using your user name and password without your authorization, please notify us through the Support link on the Sites. You are responsible for any fees or charges incurred to access a service through an Internet service provider or other third-party service.
- Reliance on Information Posted.
The information presented on or through the Sites is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.
This Website may include content provided by third parties, including materials provided by other users, and third-party licensors, syndicators, aggregators, and/or reporting services. All XcelABLE XcelABLE tements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by us, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of XcelABLE. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
- Indemnification, Disclaimer of Warranty, Limitation of Remedies.
By accessing XcelABLE’s Sites and/or submitting User Content to any of XcelABLE’s sites you agree that you will:
In other words – YOU WILL BE HELD FULLY LIABLE FOR WHATEVER YOU UPLOAD OR POST TO OUR SITES. AND IF WE GET SUED BECAUSE OF SOMETHING YOU UPLOADED OR POSTED, YOU WILL HAVE TO PAY FOR US TO DEFEND THAT LAWSUIT AND ANY RESULTING LIABILITY FOR DAMAGES.
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Sites will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your individual requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE SITES, THEIR CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITES IS AT YOUR OWN RISK. THE SITES, THEIR CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER XCELABLE NOR ANY PERSON ASSOCIATED WITH XCELABLE MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITES. WITHOUT LIMITING THE FOREGOING, NEITHER XCELABLE NOR ANYONE ASSOCIATED WITH XCELABLE REPRESENTS OR WARRANTS THAT THE SITES, THEIR CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, XCELABLE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL STA, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON ANY OF THE SITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE OR EVEN IF XCELABLE WAS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
NEITHER XCELABLE NOR ANY OF ITS OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, PARTNERS, AGENTS, and REPRESENTATIVES, THIRD- PARTY SERVICE PROVIDERS OR CONTENT PROVIDERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR MORE THAN AN AGGREGATE AMOUNT OF FIVE HUNDRED DOLLARS ($500.00).
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
- XcelABLE Rules for Using its Site(s). XcelABLE’s Sites may be accessed and used only for lawful purposes. You agree to abide by all local, State, Federal and foreign laws, treaties and regulations that cover your use of XcelABLE’s Sites. Additionally, you agree to abide by the following rules:
You must not do anything to violate or attempt to violate any security and access control provisions implemented in or in connection with the Sites or the Content; or do anything to interfere or attempt to interfere with the operation of XcelABLE’s Sites, the display of the Content, or the use of the Sites by other Users.
By way of example only, we require that you do not:
take any action to violate or attempt to violate any security and access control provisions implemented in or in connection with the Sites or the Content;
log in with a password not assigned to you; access Content not intended for you;
test the security measures on XcelABLE’s Sites and/or attempt to identify system vulnerabilities;
forge any of the header information in any posting or tamper with the TCP/IP packet header;
use XcelABLE’s Sites to send altered, deceptive or false source-identifying information;
modify, reverse engineer, disassemble, decompile or otherwise attempt or allow others to attempt to discover the underlying computer code for the Sites; or
attempt to probe, scan or test the vulnerability of any XcelABLE system or network or breach or impair or circumvent any security or authentication measures protecting the Sites.
You are also prohibited from:
impersonating or misrepresenting your affiliation with any person or entity;
using the Sites in any manner not permitted by this Agreement or encouraging or instructing any other individual to do so;
allowing a third party to access the Content under your account;
entering false or misleading information on any forms requesting information from you;
providing false or misleading information in any Content you upload or provide to use or creating user accounts by automated means or under false pretenses or misleading others as to the origins of your communications;
tricking, defrauding, deceiving or misleading XcelABLE’s Sites or other users, especially in any attempt to learn sensitive information;
making improper use of XcelABLE’s Sites’ support services or submitting false reports of abuse or misconduct;
creating or transmitting unwanted electronic communications such as “spam,” to other users or members of XcelABLE or otherwise interfering with other users’ or members’ enjoyment of XcelABLE’s Sites;
disparaging, tarnishing, or otherwise harming, in XcelABLE’s opinion, XcelABLE, XcelABLE’s Sites and/or any of its users;
disseminating or transmitting viruses, worms, Trojan horses, RATs, keyboard loggers, time bombs, spyware, adware, cancelbots, passive collection mechanisms, or any other malicious or invasive code or program, or upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices;
reverse engineering, decompiling, reverse assembling, modifying or attempting to discover any software (source code or object code) that an XcelABLE Site creates to generate web pages or any software or other products or processes accessible through the Site;
except as may be the result of standard search engine or Internet browser usage, using or launching, developing or distributing any automated system, including, without limitation, any spider, robot (or “bot”), cheat utility, scraper or offline reader that accesses XcelABLE’s Sites or uses or launches any unauthorized script or other software;
accessing or searching or attempting to access or search XcelABLE’s Sites by any means (automated or otherwise) other than through the currently available, published interfaces that are provided by XcelABLE (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with us;
covering or obscuring any notice, banner, advertisement or other branding on XcelABLE’s Sites;
selling access to XcelABLE’s Sites. or any part thereof other than through a mechanism approved by XcelABLE; or
interfering with or disrupting (or attempting to do so) the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing XcelABLE’s Sites, or by scripting the creation of content in such a manner as to interfere with or create an undue burden on XcelABLE’s Sites.
You are also prohibited from:
including any offensive comments that are connected to race, national origin, gender, sexual preference or physical handicap;
including hateful, profane, obscene, indecent, pornographic, sexual or otherwise objectionable content or language;
defaming, libeling, ridiculing, mocking, disparaging, threatening, harassing, intimidating or abusing anyone;
promoting violence, illegal drug use, or substance abuse or describing how to perform a violent act, use illegal drugs or abuse other substances;
violating the contractual, personal, intellectual property or other rights of any person, or promoting illegal activity;
revealing any personal information about another individual, including another person’s address, phone number, e-mail address, credit card number or any information that may be used to track, contact or impersonate that individual.
In addition to the foregoing, when providing comments on our Site, Users are required to abide by the following additional guidelines:
This list of prohibitions and requirements above is illustrative and not intended to be complete or exclusive. XcelABLE reserves the right to prohibit your access to the Sites for any action that XcelABLE, in its sole judgment, determines to be inappropriate or disruptive to the Sites, or to any other User.
Remember, you are solely responsible for all activities on the Sites initiated through your user name and password.
Also, we may refuse to grant you a screen name that impersonates someone else, is protected by trademark or other proprietary right law, or is vulgar or otherwise offensive.
If we become aware of any breach of this Agreement or the foregoing rules, we will investigate and may work with law enforcement authorities in such investigation and for the purpose of prosecuting offenders. You agree to notify XcelABLE immediately of any unauthorized use of your account or any other breach of security of which you become aware.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Sites. YOU WAIVE AND HOLD HARMLESS XCELABLE AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY XCELABLE AND ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER XCELABLE OR SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
XcelABLE reserves the right to moderate or review User Content; however, the foregoing prohibitions do not impose on XcelABLE, and XcelABLE does not assume any obligation, to monitor or remove any Content. By using the Sites, you hereby acknowledge and agree that you may be exposed to content that is offensive, indecent or objectionable to you. Your access to the Sites is undertaken at your own risk and XcelABLE is not responsible for any offensive or otherwise objectionable materials in the Content.
- Modification or Termination. XcelABLE reserves the right to modify the Sites, and the Content at any time, without notice to you. XcelABLE reserves the right to terminate, in whole or in part, the Sites, and the Content, without notice to you. UPON ANY TERMINATION OR SUSPENSION, ANY INFORMATION (INCLUDING USER CONTENT) THAT YOU HAVE SUBMITTED TO THE SITES OR THAT IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, we will have no obligation to maintain any information stored in our database related to your account or to forward any information to you or any third party.
- General. XcelABLE controls and operates these Sites from its headquarters in the State of California in the United States. It makes no representation that the Content is appropriate or will be available for use in locations other than the United States. If you use these Sites from outside California or the United States, you are entirely responsible for compliance with applicable local laws, including but not limited to the export and import regulations of other countries in relation to the Content.