XREA app Terms of Service
Effective as of: December 7, 2023
Last Updated: December 7, 2023
YOUR USE OF THIS WEBSITE CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN (the “Terms of Use”); THEREFORE, PLEASE READ THEM CAREFULLY. Any person or entity accessing or using this website or subscribing for the services contained herein is referred to as “you” or the “User”. If you register for a trial of our services, the applicable provisions of the Terms of Use will also govern that of the trial subscription.
Acceptance of Terms of Use
This website (the "Site") is operated by XREA, Inc., a Wyoming corporation ("XREA" or "we" or "us"). XREA requires that all users of the Site agree to the Terms of Use in order to access or use the Site and/or subscribe for the services offered or provided through it (the “Services”). By accessing or using the Site or the Services (or any part thereof), you acknowledge that you have read, understood and agree to accept, comply and be legally bound by the Terms of Use and all related technical specifications, security procedures, rules of access and any other terms and conditions set forth by us as we may modify them from time to time without notice to you. The Terms of Use constitute a legal and binding contract between you and XREA, and by accessing or using any part of the Site you represent and warrant that you have the right, power and authority to agree to and be bound by the Terms of Use. If you do not agree to be bound by the Terms of Use, or if you do not have the right, power, and authority to agree to and be bound by these Terms of Use, you may not access or use any part of the Site or the Services. You are responsible for regularly reviewing the Terms of Use. You can review the most current version of the Terms of Use at any time at www.xrea.ai.
Purpose of Site
The Site is intended to provide information about real estate markets across the United States. The information and Services offered on or through the Site are provided solely for general business information, do not constitute real estate, legal, tax, accounting, investment or other professional advice, or an offer to sell or lease real estate, and may not be used for or relied upon for these purposes. No lawyer-client, advisory, fiduciary or other relationship is created by your accessing or using the Site or communicating by way of email through the Site . You shall not use information and Services offered on or through this Site for personal, family or household purposes or to determine an individual's eligibility for credit, insurance, employment, or government license or benefit. You shall also not use the Site in any way that is intended to cause the information to constitute a “consumer report” under the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. or in any other manner that is intended to be construed as a consumer report by any governmental authority. You agree to access or use the Site and Services only for legal purposes that are permitted by the Terms of Use. The use of the Site (including, without limitation, any content posted on it, or Service made available), by you, or anyone else authorized by you, is prohibited except as allowed by the Terms of Use.
PLEASE NOTE: WHERE PERMITTED BY APPLICABLE LAW, WHEN YOU AGREE TO THE TERMS OF USE YOU ARE AGREEING (WITH LIMITED EXCEPTIONS) TO RESOLVE ANY CLAIM BETWEEN YOU AND XREA THROUGH BINDING AND FINAL ARBITRATION RATHER THAN IN COURT AND YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. PLEASE REVIEW CAREFULLY THE SECTION LABELED “APPLICABLE LAW/ARBITRATION” BELOW FOR DETAILS REGARDING ARBITRATION. THIS AGREEMENT ALSO CONTAINS A CLASS ACTION WAIVER.
BY ENTERING INTO THE TERMS OF USE, YOU ACKNOWLEDGE THAT YOU UNDERSTAND THE TERMS OF USE AND AGREE TO ALL OF ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE TERMS OF USE, YOU MAY NOT USE OR ACCESS THE SITE AND/OR THE SERVICES.
Trial Accounts
All trial accounts are provided “as is” and “as available” without any warranty of any kind.
Trial accounts may be suspended, terminated or discontinued at any time and for any reason (or no reason).
XREA disclaims all obligations and liabilities (including any liability otherwise provided for under any limitation of liability provision) for any harm or damage arising out of or in connection with a trial account.
Disclaimer
The Site uses proprietary algorithms to evaluate the potential viability of developing residential homes in various neighborhoods and cities based on specified criteria we refer to as “Use Cases.” The viability of a given use case is measured by a “Use Case Score.” All Use Case Scores are projections, and they do not represent actual results. These projections are based upon various assumptions regarding properties, neighborhoods and cities. We make no representation that any Use Case Score will accurately reflect a given neighborhood’s or city’s development viability.
The data presented is subject to significant assumptions. Although XREA believes the assumptions used to generate this data are reasonable, these assumptions are subjective in nature and other assumptions may also be reasonable. Different assumptions may result in materially different returns. Users should satisfy themselves that they understand the assumptions used and their effect on these projections. Users should understand that they may lose some or all of their investment. The projections set forth in these materials are provided to you on the understanding that you will understand and accept the inherent limitations of such Use Case Scores, and will not rely on them as your sole metric in making any decision to invest in a property. We do not represent that any given Use Case Score will result in a successful outcomes if a User decides to develop in a given area based on the Use Case Score.
Use of Site
A. You may use the Site and the Services, including the content on it, solely for the purpose stated on the Site itself and as described in the Terms of Use. You represent, warrant at all times that:
(1) All information you submit is truthful and accurate, and you will promptly update it as it may change from time to time.
(2) For individual users, you are a U.S. citizen, at least age 18 or older, and you are of age to enter into a legally binding contract when using the Site.
(3) For commercial users, the person subscribing to our Services and creating an account is employed by the institution or entity that you have designated, and such person is authorized to act on the entity’s behalf in an official capacity with respect to the Services and the Site.
(4) Your use of the Site does not and will not violate any laws or regulations that may apply to you, or any agreements that you have with another person or entity, and you will only use the Services for lawful purposes, and not for deceptive or fraudulent purposes; you will not send or store any unlawful material.
(5) Any content that you insert or upload to the Site does not infringe the copyright, trademark, publicity/privacy right and/or other intellectual property or proprietary rights of any person or entity.
(6) You will not impersonate another person or act as another entity without authorization, or create multiple accounts.
B. You also agree to the following:
(1) You will not use the Services, the Site or any content accessible through the Services for any commercial “for profit” purpose, including but not limited to contacting, advertising to, soliciting or selling to, any individual, outside of the relationship that we have with you, without our prior written consent.
(2) While using the Site, you must comply with all applicable domestic and international laws, statues, ordinances and regulations.
(3) You will not use the services to cause nuisance, annoyance or inconvenience; distribute viruses or any other technologies that may harm us, or the interests or property of any of our other users or business partners; bypass our system security measures, damage, disable, interfere with or impair the working of the Services or the Site, or impose an unreasonable or disproportionately large load on our infrastructure.
(4) You will not harvest or otherwise collect information about other users or visitors to the Site, including email addresses, or otherwise violate the publicity or privacy rights of another individual without their consent.
(5) You understand and agree that you do not have the authority to act on our behalf, to speak for us or to obligate us in any way with respect to any third party.
(6) Except with the express written permission of XREA, you will not access or attempt to access password-protected, secure or non-public areas of the Site or obtain or attempt to obtain any materials or information through any means not made readily accessible by us.
(7) Except with the express written permission of XREA, you will not alter, modify, copy, distribute, transmit, display, perform, reproduce, reuse, post, publish, license, hyperlink to, promote, download, cache, store for subsequent use, create derivative works from, frame in another Web page, use on any other Web site or application, transfer or sell any information, software, content displayed, lists of users, databases or other lists, products or services provided through or obtained from the Site or Services, including without limitation, engaging in the practices of “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other content or information.
(8) You will not damage, disable, overburden or impair the Site or interfere with any other party’s use and enjoyment of the Site.
(9) You will not create or compile, directly or indirectly, any collection, compilation or other directory from any content displayed through the Services except for your personal, noncommercial use.
(10) You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Services.
Fees
You are responsible for the timely payment of any fees incurred by your use of the Services available on the Site. With regard to the XREA subscription fee (the “Subscription Fee”), you agree to a recurring monthly charge as outlined during the signup process along with any upgrades, enhancements or fee-based services that you may agree to within the Service or from the order page on the Site, including, without limitation, the Market Study or Feasibility Study, on your credit card until canceled by you. You may cancel your account with 30 days’ prior written notice by clicking the “Cancel My Account” button found within your account.
In the event that your designated primary payment method declines for any Subscription Fee or other charges that you incur, you authorize XREA to bill all additional credit cards or payment methods on file from you with XREA to satisfy your outstanding balance(s).
Based upon your agreement to adhere to, and fully comply with, the Terms of Use, XREA grants and conveys to you, during the term of your valid subscription, a non-exclusive, non-transferable license to use the Services provided through the Site subject to the terms, conditions and restrictions set forth herein.
Unless you purchase the Market Study or Feasibility Study, the term of your subscription is one month, but automatically renews month-to-month unless terminated by you or us.
WE RESERVE THE RIGHT, AT ANY TIME AND FROM TIME TO TIME, TO PROSPECTIVELY CHANGE THE NATURE AND AMOUNT OF FEES CHARGED FOR ACCESS TO THE SERVICE AND THE MANNER IN WHICH SUCH FEES ARE ASSESSED AS SET FORTH HEREIN.
Payment of Charges
XREA currently charges a monthly Subscription Fee for Market Intel. The monthly Subscription Fee for the Services is calculated from the day of the month that the User’s paid subscription commences. [The User may also purchase a Market Study or Feasibility Study, which shall be paid upfront prior to receiving such studies.] The User authorizes XREA to, and agrees that XREA may, charge to the User's credit card, debit card or bank account, in advance, the User's regular monthly Subscription Fee for the Services for each month of the User’s regular monthly subscription on a recurring basis. The User authorizes XREA to, and agrees that XREA may, modify and/or change the monthly subscription fee charged to the Client upon thirty (30) days' notice to the User sent by e-mail to the User's email of record on file with XREA. The monthly Subscription Fee is non-refundable and accrues until canceled whether or not the User accesses the Site or uses the Services.
The User is required to pay all charges on time and agrees to submit an accompanying payment authorization in connection with these charges when requested by XREA. Credit-card transactions require an acceptable and currently working/continuously valid credit card number/account. XREA may terminate or disable the User’s participation in the Services if the User fails to pay fully and in a timely manner any and all amounts due to XREA. If the User's credit card expires or is otherwise declined for payment, access to the Services and Site can be modified or suspended without notice to the User. In the event the User's primary payment method declines or is otherwise rejected or returned, the User authorizes XREA to charge and collect payment(s) from any credit card(s) or payment method(s) on file for the User's account.
Payment Methods
The User's complete billing address and telephone number must be provided to process payments. XREA accepts major credit cards including Visa, MasterCard, Discover and American Express [and may accept bank drafts, including personal checks, money orders, cashier's checks, and company checks sent by mail.] XREA may charge a $30.00 handling fee, or the maximum allowable by law, whichever is less, for each check returned unpaid for insufficient funds or any other reason.Account Discrepancies
The User may contact XREA customer service by e-mail at info@xrea.ai concerning charges or other questions regarding the status of the User's account. However, if the User's account questions are not satisfactorily resolved within fifteen business days of the User's sending an e-mail, and in no event later than 90 days after a questionable account billing or other discrepancy should have been discovered, the User must write to the customer service department, XREA, Inc., 30 N. Gould Street, Sheridan Wyoming 82801, delivered by United States mail. Otherwise, all such complaints are irrevocably waived.
License Restrictions
The User represents, warrants, affirms and agrees that the Services, including the Use Case Scores provided by us to you will only be used by you and that you will not permit or allow the data, information or Services to be used by any agent, representative, consultant, officer, director, shareholder, parent organization, subsidiary organization, third party or any other person or entity. You consent that your search volume is monitored to avoid abuse, data duplication, “data mining” and excessive or otherwise non-customary search and usage patterns. Any such actions will be determined by us in our sole discretion and will result in an immediate termination of your account. The User further represents, warrants, affirms and agrees that you will not transfer, sell, convey, use, resell or sublicense any data, information or Services, including Use Case Scores provided by us to you in any medium, form, manner or format whatsoever, for any purpose including, [but not limited to the following:
Using the Services other than for the User’s own personal use, i.e. no commercial purpose or use, or use of the User’s account by others is permitted;
Making available to any third party any reproduction, reformatting, publication, distribution or dissemination of information associated with the Service;
Marketing or telemarketing uses;
World Wide Web, Internet or online uses;
Real estate valuation models, programs or systems;
Inclusion or in combination with any other service or product of any kind;
Extracting, selecting or drawing out any data element for any use;
Real estate appraisal;
Credit evaluation and/or support;
Evaluating risk, marketing sale of insurance products of any kind, including but not limited to life, health, long-term care, disability, casualty, umbrella, mortgage, title or property;
Debt collection; and
Marketing or sale of legal goods and/or services of any kind, including but not limited to bankruptcy or real estate title/lien history.]
Termination and Interruption of Access
You acknowledge and agree that XREA reserves the right to cancel subscription services and this license to the User at any time for any reason or no reason whatsoever, without recourse to the User beyond a pro-rata refund of the monthly Subscription Fee paid by the User for the remaining days of the then-current month of prepaid fees. XREA reserves the right to immediately terminate or suspend your use of the Site or any Services upon a good faith determination of a violation of the Terms of Use. In the event such suspension or termination occurs, you shall cease using any portion of the Services, permanently delete or destroy all portions of the Services within your possession, custody or control and, upon written request from XREA, certify, in writing, your compliance with this provision. In addition, XREA reserves the right, in its sole discretion, to modify or discontinue the Services or any portion thereof, with or without notice, and without any liability to you.
You may cancel your monthly subscriptions at any time. All fees due to XREA up to the end of the then-current monthly billing cycle at the time of termination shall remain payable to XREA.
Information Regarding Accuracy, Completeness and Timeliness of Information in the Services
The Services are provided for general information only and should not be relied upon or used as the basis for making significant decisions without consulting primary or more accurate, more complete or more timely sources of information. Any reliance upon the Services shall be at your own risk. Neither we, nor any third party involved in creating, producing or delivering the Services, is responsible if the Services are not accurate, complete or current or for any consequence relating directly or indirectly to any action or inaction that you take based on the Services.
No Warranties
ALTHOUGH XREA MAKES A REASONABLE EFFORT TO PROVIDE AN ACCURATE SERVICE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE SERVICES, CONTENT AND ALL PARTS THEREOF ARE PROVIDED ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. XREA AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND CORPORATE AFFILIATES AND THIRD PARTY SUPPLIERS OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (TOGETHER, THE “XREA PARTIES”) CANNOT AND DO NOT REPRESENT, WARRANT, COVENANT OR GUARANTY THAT (I) THE SITE, SERVICES AND/OR CONTENT WILL ALWAYS BE ACCURATE, APPROPRIATE, SUFFICIENT, CORRECT, COMPLETE, CURRENT OR TIMELY; (II) THE OPERATION OF, OR YOUR ACCESS TO, THE SERVICES THROUGH THE SITE WILL ALWAYS BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE; (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, CONTENT OR SERVICES WILL BE RELIABLE OR (IV) DEFECTS OR ERRORS IN THE SITE OR THE SERVICES, BE THEY HUMAN OR COMPUTER ERRORS, WILL BE CORRECTED.
XREA EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (1) AS TO TITLE, MERCHANTABILITY, FITNESS FOR ORDINARY PURPOSES AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, WORKMANLIKE EFFORT, QUIET ENJOYMENT AND NO ENCUMBRANCES OR LIENS, (2) THOSE ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; (3) THE SERVICES CONFORMING TO ANY FUNCTION, DEMONSTRATION OR PROMISE BY ANY XREA PARTY AND (4) THAT ACCESS TO OR USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE AND ANY RELIANCE UPON THE SERVICES AND/OR CONTENT IS AT YOUR OWN RISK.
XREA RESERVES THE RIGHT TO RESTRICT OR TERMINATE YOUR USE OR ACCESS TO THE SITE OR ANY SERVICES OR ANY FEATURE OR PART THEREOF IN ANY MANNER WE DEEM APPROPRIATE AT ANY TIME WITHOUT WARNING AT OUR DISCRETION.
Limitation of Liability
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, XREA WILL NOT BE HELD LIABLE FOR ANY LOSS, COST OR DAMAGE SUFFERED OR INCURRED BY YOU OR ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION THOSE ARISING OUT OF OR RELATED TO ANY FAULTS, INTERRUPTIONS OR DELAYS IN THE SERVICES, OUT OF ANY INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION CONTAINED IN THE SERVICES, REGARDLESS OF HOW SUCH FAULTS, INTERRUPTIONS, DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISE, OR FOR ANY UNAUTHORIZED USE OF THE SERVICES.
IF YOU DOWNLOAD OR USE ANY SERVICE CONTENT MADE AVAILABLE OR OBTAINED THROUGH THE USE OF THE SITE OR SERVICES AND ALL OTHER USES OF THE SITE OR SERVICES, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE, AND XREA SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM, RELATING TO OR RESULTING FROM THE SERVICES, THE TERMS OF USE, OR YOUR USE OR INABILITY TO USE ANY OF THE FOREGOING. THESE LIMITATIONS OF LIABILITY INCLUDE DAMAGES FOR FAILURE OF PERFORMANCE, ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAYS, COMPUTER VIRUSES, EQUIPMENT OR NETWORK FAILURE, LOSS OF PROFITS, LOSS OF DATA, UNAUTHORIZED ACCESS TO AND ALTERATION OF YOUR TRANSMISSIONS AND DATA AND OTHER TANGIBLE AND INTANGIBLE LOSSES.
NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY, AND TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT WILL THE MAXIMUM AGGREGATE, CUMULATIVE LIABILITY OF XREA FOR ANY REASON TO ANY PARTY FOR DAMAGES, DIRECT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, THE TERMS OF USE, OR A SEPARATE LICENSE AGREEMENT EXCEED THE TOTAL AMOUNT OF SUBCRIPTION FEES ACTUALLY PAID TO XREA BETWEEN THE RELEVANT XREA USER AND XREA FOR THE ONE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE SUCH CLAIM AROSE, REGARDLESS OF THE CAUSE OR FORM OF ACTION. RECOVERY OF THIS AMOUNT SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR THE XREA USER OR ANY OTHER PARTY FOR ANY APPLICABLE DAMAGES.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY OF THE XREA PARTIES BE HELD LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR ANY OTHER DAMAGES, WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR LOST PROFITS, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF, BASED ON OR RESULTING FROM, OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES, THE TERMS OF USE OR YOUR USE, DELAY OR INABILITY TO ACCESS OR USE ANY OF THE FOREGOING, EVEN IF XREA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING EXCLUSION OF DAMAGES IS INDEPENDENT OF THE EXCLUSIVE REMEDY DESCRIBED ABOVE AND SURVIVES IN THE EVENT SUCH REMEDY FAILS.
NEITHER XREA NOR ANY XREA PARTY SHALL HAVE ANY LIABILITY FOR ANY DAMAGES RESULTING FROM ANY FAILURE TO PERFORM ANY OBLIGATION HEREUNDER OR FROM ANY DELAY IN THE PERFORMANCE THEREOF DUE TO CAUSES BEYOND XREA'S CONTROL, INCLUDING, WITHOUT LIMITATION, INDUSTRIAL DISPUTES, ACTS OF GOD OR GOVERNMENT, PUBLIC ENEMY, WAR, FIRE, OTHER CASUALTY, FAILURE OF ANY LINK OR CONNECTION WHETHER BY COMPUTER OR OTHERWISE, OR FAILURE OF TECHNOLOGY OR TELECOMMUNICATIONS OR OTHER METHOD OR MEDIUM OF STORING OR TRANSMITTING THE SERVICES.
XREA NEITHER WARRANTS NOR REPRESENTS THAT YOUR USE OF THE SERVICES, CONTENT, SOFTWARE OR ANY OTHER MATERIALS DISPAYED ON THE SITE WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES.
BY USING THE SERVICE, YOU WAIVE AND RELEASE THE XREA PARTIES FROM ALL LIABILITY OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH YOU MIGHT HAVE ASSERTED OR ALLEGED AGAINST ANY XREA PARTY BY REASON OF OR ARISING OUT OF THE SERVICES OR YOUR USE THEREOF OR TO PARTICIPATE IN ANY CLASS ACTION SUIT FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF THE SITE OR SERVICES. THE WAIVERS AND RELEASES SET FORTH IN THE TERMS OF USE INCLUDE CLAIMS OF WHICH YOU ARE NOW UNAWARE OR WHICH YOU DO NOT NOW SUSPECT TO EXIST WHICH, IF KNOWN BY YOU, WOULD MATERIALLY AFFECT YOUR WAIVER AND RELEASE SET FORTH ABOVE.
IF YOU ARE A CALIFORNIA RESIDENT, YOU SPECIFICALLY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
THE FOREGOING LIMITATIONS APPLY WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, SERVICE LIABILITY OR OTHERWISE, EVEN IF THE XREA PARTIES WERE NEGLIGENT OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR BOTH.
THE LIMITATION OF LIABILITY SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN XREA AND YOU. THE SERVICES WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM XREA THROUGH THE SERVICES CREATES ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
NO ACTION ARISING OUT OF OR PERTAINING TO THE TERMS OF USE MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR SERVICES, OR WITH ANY OF THE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE AND THE SERVICES.
User Data
If you create any settings, saved searches, fields or functions in the Services or input, add or export any data into or from the Services (together, the "User Data"), XREA shall not have any liability or responsibility for any such User Data, including the loss, destruction or use by third parties of such User Data. It is your responsibility to make back-up copies of User Data.
Your Liability
If you cause a technical disruption of the Services, you agree to be responsible for all liabilities, costs and expenses (including reasonable attorneys' fees, fines and costs of enforcement) arising from or related to that disruption. Upon your breach of the Terms of Use or a separate agreement between you and XREA, XREA's remedies shall include any damages and relief available at law or in equity as well as interruption and/or termination of your access to the Services or any portion thereof and permanent deletion or destruction of all portions of the Services within your possession, custody or control. If XREA retains any third party to obtain any remedy to which it is entitled under the Terms of Use or a separate agreement between you and XREA, XREA shall be entitled to recover all costs, including attorney's fees or collection agency commissions, XREA incurs.
Indemnity
You agree to indemnify, defend, and hold harmless the XREA Parties from and against any third party action, cause, suit, claim or demand and any associated losses, expenses, damages, penalties, costs and other liabilities (including reasonable attorneys' fees), arising out of or relating to (i) your use or misuse of any portion of the Services, or your or your affiliates’, employees’, agents’ and representatives’ violation of the Terms of Use or a separate agreement between you and XREA, (ii) your violation of any law or regulation, (iii) a breach of your representations, warranties and agreements as set forth herein,[ or (iv) any content you provide to XREA]. You shall cooperate as fully as reasonably required in the defense of any such claim or demand. XREA and any third party involved in creating, producing or delivering the Services reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, at your expense, and you shall not in any event settle any such matter without the written consent of XREA and any such third party.
Trademarks
The Services use various trademarks and service marks of XREA. All of these trademarks and service marks are the property of XREA. You agree not to use or display them in any manner without the prior written permission of XREA.
Ownership
You acknowledge that the Site, all materials and content on the Site (as well as the organization and layout of the Site), including, but not limited to, all information, text, messages, images, photos, illustrations, designs, icons, video clips, sounds, files, trademarks, copyrighted material, trade dress, software, specifications, catalogs, literature, technical information, advertisements and other content or materials on the Site (collectively, “Content”) are owned and copyrighted or licensed by XREA and that XREA has and shall retain exclusive ownership of all proprietary rights in or to the Services, including all other rights such as patents, trademarks, copyrights, derivative works, moral rights and trade secrets. You shall have no right or interest in any portion of the Services except the limited license to access and use the Site, Services and Content during the term of your valid subscription solely for informational, personal and general business purposes (including printing individual pages from the Site provided that you retain all copyright and other proprietary notices contained thereon) as set forth in the Terms of Use. You acknowledge that the Use Case Scores and other Services on the Site constitute the valuable property and confidential copyrighted information of XREA and its licensors (together, the "Proprietary Information"). You agree to (a) comply with all copyright, trademark, trade secret, patent, contract and other laws necessary to protect all rights in the Proprietary Information, (b) not challenge XREA's ownership of (or the validity or enforceability of their rights in and to) the Proprietary Information and (c) not remove, conceal, obliterate or circumvent any copyright or other notice or license, use or copying technological measure or rights management information included in the Services. No reproduction, distribution or transmission of the copyrighted material on the Site is permitted without the prior written permission of XREA. You are strictly prohibited from downloading (other than page caching), copying, altering, framing, reverse engineering, modifying, publishing, selling or distributing, preparing derivative works or making any other use of the Site or Content, except with the express written consent of XREA. You understand that all third-party Content posted on, transmitted through, or linked from the Site, is the sole responsibility of the third-party originator of such Content. Content is provided through the Site “AS IS”, and you agree that the use of and reliance on any Content is at your own risk, and that under no circumstances shall XREA be liable for any Content or for any loss or damage of any kind incurred as a result of the use of any Content made available via the Services. You shall be liable for any violation of the provisions of the Terms of Use by your employees, independent contractors, affiliates and agents and for any unauthorized use of the Services by such persons. Nothing in the Terms of Use will restrict XREA from freely using for any purpose, without compensation, any of your ideas, suggestions, enhancements or other feedback relating to the XREA Services, features or tools, or any portion thereof. It is XREA’s policy to terminate in appropriate circumstances access to or use of the Site (or any part thereof) by repeat infringers.
[Pursuant to Title 17, United States Code, Section 512, notifications of claimed copyright infringement should be sent to XREA’s designated agent at XREA, Inc., 30 N. Gould Street, Sheridan Wyoming 82801. All inquiries must be filed in accordance with Title 17, United States Code, Section 512.]
Applicable Law; Arbitration
The Terms of Use are governed by the laws of the State of Wyoming, without regard to conflicts of law principles, and any controlling United States Federal law, including any Disputes (as defined below) and the Dispute Agreement (as defined below).
(a) Binding Arbitration. Except as specifically stated herein, ALL disputeS or claimS between you and ANY XREA PARTY arising out of, relating in any way to, or in connection with the Terms of Use, the Site or your use of or access to the Site, your Personal Information or any Services (“Dispute(s)”) shall be resolved exclusively by final AND binding arbitration RATHER THAN IN COURT IN ACCORDANCE WITH THE PROVISIONS SET FORTH IN THIS SECTION ON ARBITRATION (the “Arbitration Section”); except that you may ASSERT a claim over a Dispute in a small claims court IF YOUR CLAIMS QUALIFY. By virtue of this Dispute Agreement (defined below), you and XREA each givES up the right to go to court and have a Dispute heard by a judge or jury (except as otherwise set forth in this Arbitration secTIOn). The provisions of this Arbitration Section shall constitute your and XREA’s written agreement that the Federal Arbitration Act shall govern the interpretation and enforcement of this Arbitration Section (“Dispute Agreement”) and any Dispute. Arbitration is more informal than a lawsuit in court and uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. The arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any Dispute arising out of this Dispute Agreement or of the Terms of Use. The arbitration will be conducted by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to its rules and procedures as modified by this Arbitration Section, including, without limitation, the AAA’s Consumer-Arbitration Rules, available at the ADR Consumer site. The arbitrator will apply and be bound by this Agreement, apply applicable law and the facts, and issue a reasoned award, if appropriate. The arbitrator shall not be bound by rulings in prior arbitration proceedings involving XREA users.
To begin an arbitration proceeding, you must submit the Dispute by utilizing the forms available at ADR Consumer site, and concurrently sending a copy of the completed form to the following address: 30 N. Gould Street, Sheridan, Wyoming 82801.
Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Dispute Agreement. XREA will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the Dispute is frivolous. The arbitration will be conducted based upon written submissions unless you request, and/or the arbitrator determines, that a telephone or in-person hearing is necessary. In addition, you hereby unconditionally agree that (1) the arbitrator’s decision shall be controlled by the Terms of Use and any of the other agreements referenced herein that you may have entered into in connection with the Site; (2) the arbitrator shall apply Wyoming law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law; and (3) in the event the AAA is unavailable or unwilling to hear the Dispute, you and the applicable XREA Party(ies) shall agree to, or a court shall select, another arbitration provider. Unless you and we agree otherwise, any in-person arbitration shall be conducted in the State of Wyoming, and claims regarding the judgment of the arbitrator may be brought and shall be subject to the exclusive jurisdiction of the State and federal courts located in the State of Wyoming, and you waive any jurisdictional, venue or inconvenient forum objections to such courts. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
(b) No Class Action Matters. You and XREA each agree that we shall bring any Dispute against the other in our respective individual capacities and not as a plaintiff or class member in any purported class or representative action or proceeding or as an association. In addition, unless we both agree otherwise, Disputes shall be arbitrated only on an individual basis and the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a class, a consolidated or representative action and that the arbitrator may award relief (including monetary, injunctive and declaratory relief) only on an individual basis. The arbitrator does not have the power to vary these provisions. Any relief awarded cannot affect other XREA users.
(c) Choice of Law and Forum; No Jury Trial. In the event that this Arbitration Section is found to not apply to you or to a particular claim or Dispute or if for any reason a Dispute proceeds in court: (i) except with respect to a qualifying claim over a Dispute in a small claims court, which you shall have the right to bring in a court of competent jurisdiction in the county in which you reside, you and XREA agree that any Dispute may only be instituted in a state or federal court in the State of Wyoming; (ii) you and XREA irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; and (iii) you and XREA agree to waive any right to a trial by jury. You and XREA agree that the arbitrator will decide the substance of all claims in accordance with the Federal Arbitration Act, the AAA rules, applicable federal law, and the laws of the State of Delaware, without regard to principles of conflicts of law.
(d) Injunctive Relief. Notwithstanding anything to the contrary in this Dispute Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to the infringement of a party’s intellectual property, or any illegal or intentional act affecting the accessibility, functionality, or the security of the Site, and/or any illegal or intentional act against your interests or the general business interests of XREA.
(e) Severability. With the exception of Section (b) above, if a court decides that any part of this Arbitration Section is invalid or unenforceable, then the balance of this Arbitration Section still apply and be construed and enforced as if the portion ruled unenforceable were not contained herein. If Section (b) above is ruled to be unenforceable, then Section (a) of the Arbitration Section shall be deemed unenforceable, but the rest of the Arbitration Section shall remain in full effect. Access and use of this Site and Services is not authorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation, this Arbitration Section.
Modifications to Services; Changes to these Terms
XREA is continuously updating and changing the Services and reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that XREA shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services (or any part thereof). Additionally, we reserve the right, in our complete and sole discretion, to change the Terms of Use at any time by posting revised terms on the Services. It is your responsibility to check periodically for any changes we may make to the Services and the Terms of Use. Your continued use of this Services following the posting of changes to these terms or other policies means you accept the changes.
Termination
You may terminate the Terms of Use by destroying all materials obtained from the Site, cancelling your user account and stopping all use of the Site and Services. We may terminate the Terms of Use immediately at will for any reason, in our sole judgment, without warning or prior notice. Upon notification of termination, you must destroy all materials obtained from the Site and stop all use of the Site and the Services. Any data or information that we collected from you will be subject to any privacy policy and/or any separate services agreement that you have with us. The restrictions imposed on you with respect to information or materials viewed and/or downloaded in respect of the Services and the disclaimers, indemnities, waivers, releases and limitations of liabilities set forth above shall survive termination or suspension of the Terms of Use for any reason.
[International Use
The Site is controlled and operated from within the United States. We make no representation that the Site is appropriate or available in locations outside the United States. Anyone choosing to access the Site from other locations is responsible for compliance with applicable laws. International visitors must comply with all local rules regarding online conduct and acceptable content, including laws regulating the export of data from the United States or your country of residence. The United States Export Control laws prohibit the export of certain technical data and software to certain territories. No software from the Services may be downloaded or exported: into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Sudan, Syria or any other country to which the United States has embargoed goods; or to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Deny Orders.]
Miscellaneous
Unless otherwise specified herein, or in any other definitive written agreement between you and XREA, the Terms of Use contain the entire agreement between the parties with respect to the Site and the Services and supersede all prior or contemporaneous oral, electronic or written statements, communications, proposals and documents with respect to such subject matter. A printed version of the Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Your obligations hereunder are binding on your successors, legal representatives and assigns. You may not assign, sublicense or transfer (by operation of law or otherwise) the Terms of Use or any portion hereunder, in whole or in part, without the prior written consent of XREA. Any purported assignment in violation of the preceding sentence is void and of no effect. We may assign any of our rights or obligations under these Terms of Use to another party without notice or consent for any reason. In the event any portion of these Terms of Use not being of a fundamental nature is determined to be invalid, illegal or unenforceable, then such provision shall be deemed severed from the Terms of Use without invalidating the remaining provisions of the Terms of Use or affecting the enforceability of such remaining provisions. If any other provision is held to be invalid, illegal or otherwise unenforceable, it shall be deemed to be superseded by a valid and enforceable provision that retains the intent and benefits of the original provision and the remainder of the Terms of Use shall continue in effect. Any consent by XREA to, or waiver of, a breach of a right, term or provision of the Terms of Use, whether express or implied, shall not constitute a consent to, or waiver of, any other, different or subsequent breach. Headings are for reference only. The use of and access to the Services is available only to individuals who can enter into legally binding contracts under applicable law. All notices to XREA pertaining to the Terms of Use will be in electronic form sent to info@xrea.ai. All notices will be deemed received if sent between 9:00 am and 5:00 pm Central time during Monday through Friday, except legal holidays observed by the United States federal government. If a notice is sent outside these times, then the notice will be deemed delivered on the next business day. You agree that no joint venture, partnership, employment or agency relationship exists between you and XREA as a result of the Terms of Use or accessing or using the Site or Services. Nothing in the Terms of Use may be construed to create or confer any rights on any third-party beneficiaries. XREA’s performance under the Terms of Use is subject to existing laws and legal process, and nothing contained in the Terms of Use is in derogation of XREA’s right to comply with governmental, court and law enforcement requests or requirements relating to your access or use of the Site or information provided to or gathered by XREA with respect to such use.
