Last Modified: March 11, 2019
IMPORTANT NOTICE: IF YOU ARE A UNITED STATES RESIDENT, DISPUTES ABOUT THESE TERMS AND THE XANADU SERVICES ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE “MANDATORY ARBITRATION AND CLASS ACTION WAIVER FOR RESIDENTS OF THE UNITED STATES” SECTION BELOW.
You acknowledge and agree that by accessing or using the Services or by uploading or posting any User Content (as defined below) in connection with the Services, you, your heirs, and assigns (collectively “you”) are indicating that you have read, understand, and agree to be bound by these Terms and to comply with all applicable laws and regulations, including applicable export and re-export control laws and regulations. If you do not agree to these Terms, then you must stop accessing or using the Services. The purchase of any Xanadu products or services is subject to our separate Terms of Sale.
We may revise these Terms to reflect changes to the Services, our users’ needs, our business priorities or changes in laws and regulations. We will give you notice of such revisions in accordance with legal requirements. Every time you use the Services, please check these Terms to ensure you understand the terms that apply at that time. If you do not agree to, or cannot comply with, the modified Terms, you must stop using the Services. Your continued use of the Services after any such update constitutes your binding acceptance of such changes. The Terms were most recently updated on the effective date listed at the top of this document.
1. Information About Us
2. Eligibility and Scope
3. Account Registration and Use
4. Our Proprietary Rights
5. User Content and Submissions
6. License and Prohibited Conduct
7. Legal Compliance
9. Exclusions and Limitations
10. Warranties, Disclaimers and Limitation of Liability
12. Third Party Links and Services
13. Modification and Termination
14. Notice of Intellectual Property Infringement
15. Mandatory Arbitration and Class Action Waiver
16. Controlling Law
17. General Terms
18. Contact Us
1. INFORMATION ABOUT US
The Services that link to these Terms are controlled and operated by Xanadu from its offices located at 3218 E Bell Rd, Phoenix, AZ in the United States of America. To contact us, please visit our Contact page.
2. ELIGIBILITY AND SCOPE
To use the Services you must be, and represent and warrant that you are, of legal age (18 years of age or older or otherwise of legal age in your jurisdiction) and able to agree to these Terms. If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity). If Xanadu has previously prohibited you from accessing or using the Services, you are not permitted to access or use the Services.
2.2 API Access and License Agreement
“Xanadu API” means any Xanadu application programming interface/API and related: (i) software, (ii) specifications, (iii) documentation, and (iv) intellectual property, provided by Xanadu to enable interoperability between any Xanadu product and a software application. “Developer Application” means any software application developed by you or on your behalf to interface with and interoperate with a Xanadu product through a Xanadu API. In order to access and use a Xanadu API, you must enter into a separate written or electronic licensing agreement with Xanadu, which may be in the form of an end-user license agreement/EULA, (each a “Developer License Agreement”). If you choose to interact with the Xanadu API, the applicable Developer License Agreement and not these Terms governs your license to the applicable Xanadu API. Always check the applicable Developer License Agreement to make certain that neither you nor your software application(s) infringe the rights of Xanadu or others.
3. ACCOUNT REGISTRATION AND USE
3.1 Account Registration and Confidentiality
You may be required to create an account to use parts of the Services. If so, during the registration process, you must select a user name and password and provide us with additional information. It is your responsibility to ensure that your password remains confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your user name and password. We may assume that any communications we receive under your account have been made by you.
3.2 Unauthorized Account Use
You are responsible for notifying us if you become aware of any unauthorized use of or access to your account. To contact us, please see our Contact page. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. Xanadu will not be liable for any loss, damages, liability, expenses or lawyers’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses and lawyers’ fees incurred by Xanadu or a third party due to someone else using your account.
4. OUR PROPRIETARY RIGHTS
The Services are owned and operated by Xanadu and contain materials (including all software, design, text, editorial materials, formulations, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks) which are derived in whole or in part from materials supplied by Xanadu and its partners, as well as certain third parties, and are protected by copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws.
You agree to abide by all applicable copyright and other laws. You acknowledge that the Services have been developed, compiled, prepared, revised, selected, and arranged by Xanadu and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of Xanadu and such others.
You agree to protect the proprietary rights of Xanadu and all others having rights in the Services during and after the term of these Terms and to comply with all reasonable written requests made by Xanadu or its suppliers and licensors (collectively, “Suppliers”) of content or otherwise to protect their and others’ contractual, statutory, and common law rights in the Services. You agree to notify Xanadu immediately upon becoming aware of any claim that the Services infringe upon any copyright, trademark, or other contractual, statutory, or common law rights.
All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation, rights in and to all applications and registrations relating to the Services shall, as between you and Xanadu, at all times be and remain the sole and exclusive property of Xanadu. Any unauthorized use of any material contained on or through the Services may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.
5. USER CONTENT AND SUBMISSIONS
5.1 User Content and Posts
The Services may enable you to submit, post, upload, or otherwise make available (collectively, “Post”) content such as video clips, photographs, reviews, questions, comments, public messages, ideas, designs, features, formulations, business plans, inventions, product feedback, comments and other content (collectively, “User Content”) that may or may not be viewable by other users.
5.2 Our License to User Content
5.3 User Content Representations
You acknowledge and agree that all User Content that you Post is your sole responsibility. You represent that you have all required rights to Post or transmit such User Content without violation of any third-party rights. You understand that Xanadu does not control, and is not responsible for, User Content, and that by using the Services, you may be exposed to User Content from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content may contain typographical errors, other inadvertent errors or inaccuracies. You agree that you will indemnify, defend, and hold harmless Xanadu for all claims resulting from User Content you Post. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.
5.4 User Content Review
You acknowledge and agree that Xanadu and its designees may or may not, at Xanadu’s discretion, pre-screen User Content before its appearance on the Services (but does not assume any obligation to). You further acknowledge and agree that Xanadu reserves the right (but does not assume the obligation) in its sole discretion to reject, move, edit or remove any User Content that is contributed to the Services. Additionally, Xanadu has the right to remove any User Content that violates these Terms or is otherwise objectionable in Xanadu’s sole discretion. You acknowledge and agree that Xanadu does not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content.
5.5 User Submissions
Xanadu maintains an exceptionally strong commitment to research. Researching new technologies, incorporating the new technologies into products, and developing marketing strategies for our products may take several years. We wish to avoid any misunderstandings that could arise if a Xanadu product or marketing strategy bears even a superficial resemblance to an idea that was submitted to Xanadu during the development process, or if a product feature or function may seem related to customer observations submitted to us. Xanadu does not provide any compensation, in either cash or product, for User Content submitted to Xanadu, including without limitation any idea for a potential product formulation. If you still submit such information to us you agree that such information shall be deemed to be non-confidential and nonproprietary, and Xanadu shall have no obligation of any kind with respect to such information and shall be free to reproduce, use, disclose, and distribute the information on an unrestricted basis for any purpose whatsoever, unless expressly agreed otherwise in writing by Xanadu. Further, Xanadu shall be free to use any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products incorporating such information.
6. LICENSE AND PROHIBITED CONDUCT
6.1 Your License
6.2 Prohibited Uses
Use of the Services for any illegal purpose, or any other purpose not expressly permitted in these Terms, is strictly prohibited. Without limitation, you will not:
- use any Xanadu API or Developer Application except as in compliance with the applicable Developer License Agreement;
- post User Content that: (1) harasses, abuses, or threatens any other person, or that contains obscene content; (2) is false, misleading, or inaccurate; (3) degrades or discriminates against others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or any other classification; (4) is indecent, offensive, harassing, violent, hateful, inflammatory, unlawful, harmful, tortious, defamatory, libelous, or invasive of another’s privacy; (5) promotes sexually explicit or pornographic material, violence, or any illegal acts; (6) infringes the legal rights of any person or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms; or (7) gives the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case;
- use the Services commercially, except as in compliance with an applicable Developer License Agreement;
- use the Services for benchmarking, or to compile information for a product or service;
- copy, download (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), modify, distribute, post, transmit, display, perform, reproduce, broadcast, “mirror,” duplicate, publish, republish, upload, license, reverse engineer, create derivative works from, or offer for sale any content or other information contained on or obtained from or through the Services, by any means except as provided for in these Terms, any applicable Developer License Agreement, or with the prior written consent of Xanadu;
- scrape, access, monitor, index, frame, link, or copy any content or information on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or any other method of access other than manually accessing the publicly-available portions of the Services through a browser or accessing the Services through any API provided or approved by Xanadu;
- breach the restrictions in any robot exclusion headers of the Services, if any, or bypass or circumvent other measures employed to prevent or limit access to the Services;
- post material that advocates illegal activity or discusses illegal activities with the intent to commit them;
- post or otherwise make available any material that contains any software, device, instructions, computer code, files, programs and/or other content or feature that is designed to interrupt, destroy, harm, or limit the functionality of any computer software or hardware or telecommunications equipment (including without limitation any time bomb, virus, malware, software lock, worm, self-destruction, drop-device, malicious logic, Trojan horse, trap door, “disabling,” “lock out,” “metering” device or any malicious code);
- post or do anything that could disable, overburden, or impair the proper working of the Services;
- post material that impedes or otherwise prohibits communication or disrupts user discussion;
- post, utilize or otherwise make available any other party’s intellectual property unless you have the right to do so, or remove or alter any copyright, trademark or other proprietary notice contained on the Services;
- post any trade secrets or other confidential information, or post any material that you do not have a right to make available under any law or under contractual or fiduciary relationships, including but not limited to inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements;
- falsely state or otherwise misrepresent your affiliation with a person or entity, or impersonate any person or entity in a manner that does not constitute parody
- solicit personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords
- send spam, commercial electronic messages or other advertisements or solicitations, surveys, contents, pyramid schemes, promote commercial entities, or otherwise engage in commercial activity on or through the Services;
- frame, inline link, or similarly display the Services or any portion of the Services;
- breach these Terms, the Terms of Sale, any applicable Developer License Agreement, or any guidelines or policies posted by Xanadu;
- interfere with any other party’s use and enjoyment of the Services.
In addition to the restrictions on use provided above, the products and materials on or through the Services are provided with “RESTRICTED RIGHTS.” Use, duplication or disclosure by any federal, state or local government or authority is subject to further restrictions as set forth in applicable laws and regulations. Use of the materials by such government or authority constitutes acknowledgment of Xanadu’s proprietary rights in them.
7. LEGAL COMPLIANCE
9. EXCLUSIONS AND LIMITATIONS
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for damages such as below in Section 10. Accordingly, some of the below limitations may not apply to you.
10. WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY
TO THE FULL EXTENT PERMITTED BY LAW, THE SERVICES AND ITS CONTENTS, WHETHER PROVIDED BY XANADU, ITS LICENSORS, ITS VENDORS OR ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED, LEGAL OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED. SPECIFICALLY, BUT WITHOUT LIMITATION, XANADU DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE ON THE SERVICES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR FEATURES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE DOWNLOADING AND UPLOADINGOF CONTENT) WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
TO THE FULL EXTENT PERMITTED BY LAW, IN NO EVENT SHALL XANADU OR ITS AFFILIATES, LICENSORS, VENDORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SERVICES, OR ANY LINK PROVIDED ON THE SERVICES, WHETHER OR NOT XANADU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), CIVIL LIABILITY, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE PRODUCT OR SERVICE TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT OR SERVICE, $100.
XANADU DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICES, AND XANADU WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. XANADU WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW.
If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes the criminal acts of others.
12. THIRD-PARTY LINKS AND SERVICES
The Services may provide (1) information and content provided by third parties; (2) links to third-party websites or resources, such as sellers of goods and services; and (3) third-party products and services for sale directly to you. Xanadu is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that Xanadu shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.
13. MODIFICATION AND TERMINATION
13.1 Modification of Services
Xanadu reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any part thereof), with or without notice. Xanadu shall not be liable to you or any third party for any modification, suspension or discontinuance of the Services.
We may, in our sole and absolute discretion, terminate, suspend, or otherwise deny your access to all or part of the Services at any time for any or no reason at all, with or without notice to you. If we terminate your right to access the Services, these Terms will terminate and all rights you have to access the Services, will immediately terminate; however, certain provisions of these Terms will still apply post termination, including without limitation, and as applicable, the Mandatory Arbitration and Class Action Waiver provisions. Termination of your account may also include, at Xanadu’s sole discretion, the deletion of your account and/or User Content, and you will not be able to retrieve any information related to your account except as required by applicable law. In the event of termination of an applicable Xanadu API, your Developer License Agreement will govern.
14. NOTICE OF INTELLECTUAL PROPERTY INFRINGEMENT
In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, it is the policy of Xanadu, in appropriate circumstances, to terminate the registration account of a user who is deemed to infringe third-party intellectual property rights and/or to remove user content that is deemed to be infringing. If you believe that your work has been copied in a way that constitutes copyright infringement and is displayed on the Services, please provide substantially the following information to our Copyright Agent (please consult your legal counsel or see 17 U.S.C. Section 512(c)(3) to confirm these requirements):
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of your copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material you claim is infringing is located on the Services (providing us with website URL is the quickest way to help us locate content quickly);
- 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;
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Xanadu’s copyright agent can be reached as follows:
Xanadu Holdings, LLC
Attn: Copyright Agent
3218 E Bell Rd, Suite 116 Phoenix, AZ 85032, USA
Please note that the above contact information is for intellectual property infringement notices only. DO NOT CONTACT OUR COPYRIGHT AGENT FOR OTHER INQUIRIES OR QUESTIONS. For other inquiries or questions, please email us using the contact information listed below. Please also note that, pursuant to Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
15. MANDATORY ARBITRATION AND CLASS ACTION WAIVER FOR RESIDENTS OF THE UNITED STATES. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and Xanadu agree that these Terms affect interstate commerce and that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 15 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
15.2. Initial Dispute Resolution
Most disputes can be resolved without resorting to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at Xanadu Holdings, LLC, 3218 E Bell Road, Phoenix, AZ 85032, Attn: Office of the General Counsel, and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Xanadu, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
15.3 Binding Arbitration
If the parties do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in section 15.7 below) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties’ relationship with each other, and/or your use of Xanadu shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.
15.4 Arbitrator’s Powers
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
15.5 Filing a Demand
To start an arbitration, you must do the following: (a) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco California 94111; and (c) Send one copy of the Demand for Arbitration to us at: Xanadu Holdings, LLC, 3218 E Bell Road, Suite 116 Phoenix, AZ 85032, Attn: Office of the General Counsel.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Xanadu will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Xanadu will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. Arbitration shall be initiated in Maricopa County, Arizona, United States, and you and Xanadu agree to submit to the personal jurisdiction of any federal or state court in Maricopa County, Arizona in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
15.6 Class Action Waiver
The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND XANADU AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
15.8 30-Day Right to Opt Out
You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to at Xanadu Holdings, LLC, 3218 E Bell Road, Suite 116 Phoenix, AZ 85032, Attn: Office of the General Counsel with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of (a) the Effective Date of these Terms; or (b) your first date that you used the Services that contained any versions of the Terms that included this version of the mandatory arbitration and class action waiver, whichever is later. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, Xanadu also will not be bound by them.
15.9 Changes to This Section
Xanadu will provide thirty (30) days’ notice of any changes to this section by posting on the Services. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Services.
This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Services.
16. CONTROLLING LAW
Please note that these Terms and their subject matter and its formation shall be construed in accordance with and governed by the laws of Arizona notwithstanding its conflicts of law principles. However, if you are a consumer and resident of a country in Latin American you may benefit from any mandatory provisions of, and legal rights available to you under, the laws of that country. Nothing in these Terms affects your rights as a consumer to rely on any such local law mandatory provisions and legal rights.
Any dispute arising out of these terms and conditions or the use of this site shall be initiated and conducted in the state or federal courts of Maricopa County, Arizona, and you and Xanadu consent to the exclusive jurisdiction of such courts.
17. GENERAL TERMS
17.1 Force Majeure
Under no circumstances shall Xanadu or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
17.2 No Waiver
If we fail to insist that you perform any obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived such rights and will not mean that you do not have to comply with your obligations. If we do waive a failure or breach by you, we will only do so in writing and that will not mean that we automatically waive any future failure of breach by you.
Each of the provisions of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining provisions will remain in full force and effect.
17.4 Third-Party Beneficiaries You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between you and Xanadu, and supersede any prior agreements between you and Xanadu on the subject matter, except as expressly provided herein. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by Xanadu without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of Xanadu. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. If you are using the Services for or on behalf of the U.S. government, your license rights do not exceed those granted to non-government consumers. The section titles in these Terms are for convenience only and have no legal or contractual effect. Any provision of these Terms that by its nature is reasonably intended to survive beyond termination of these Terms shall survive.
We may deliver notice to you by email, posting a notice on the Services or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received by mail at 3218 E Bell Road, Suite 116 Phoenix, AZ 85032, in the United States of America.