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LEGAL

Please read these Xplor Studio Platform Terms of Use (“Terms”) carefully. These Terms form a binding contract between you and the company that you represent  (as applicable) (“you” or “Company”) and TRIIB, Inc. t/a Xplor Studio (“Xplor”). By accessing the sites, https://studio.xplor.co and https://studio.xplortechnologies.com, including all features and services available on the site (collectively, the “Platform”), Company agrees to be bound by these Terms.

You represent and warrant that you have full power, authority, and legal capacity provided by Company to agree to these Terms.

AS A DULY AUTHORIZED USER, I UNDERSTAND THAT BY CLICKING “I AGREE” BELOW, I ACCEPT AND AGREE ON MY BEHALF AND ON BEHALF OF MY COMPANY, AS APPLICABLE, TO BE BOUND BY THE TERMS OF THIS AGREEMENT (AS DEFINED BELOW), AND CLICKING THE “I AGREE” BUTTON CONSTITUTES MY SIGNATURE.  AGREEMENT TO AND COMPLIANCE WITH THIS AGREEMENT IS REQUIRED TO ACCESS AND USE THE PLATFORM OR ANY ASSET (PHYSICAL OR OTHERWISE) ACCESSED OR DESCRIBED THEREIN, AND CONSTITUTES A BINDING AGREEMENT WITH XPLOR.

XPLOR PLATFORM TERMS OF USE

Last Updated:1st April 2021

THESE TERMS OF USE INCLUDE A CLASS ACTION WAIVER, WHICH MEANS THAT YOU OR YOUR COMPANY AGREES TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION.  THESE TERMS OF USE ALSO INCLUDE A JURY WAIVER.  DO NOT ACCESS OR USE THE PLATFORM IF YOU OR YOUR COMPANY DOES NOT AGREE TO THESE TERMS OF USE IN THEIR ENTIRETY.

These Terms of Use (the “Terms”) and the Agreement (as defined below) set forth the legally binding terms governing your access to and use of the Platform.  

THE PLATFORM IS ONLY INTENDED FOR ACCESS AND USE BY INDIVIDUALS AUTHORIZED BY COMPANY. If you are not an authorized by the Company to use the Platform, do not view or use the Platform.

By clicking “I Accept” and accessing and using the Platform, you accept and agree to be bound by these Terms, any applicable Additional Terms, and the Privacy Statement (each, as defined below), which are incorporated herein by reference (collectively, the “Agreement”).

We may at any time revise this Agreement by updating these Terms, any Additional Terms, or the Privacy Statement.  The “Last Updated Date” at the top of these Terms, and the Privacy Statement shall indicate when the latest modifications were made.  To the fullest extent permitted under applicable Law (as defined below), your continued use of the Platform constitutes your agreement to any modified terms, and you should therefore visit the Platform to review the current terms of the Agreement from time to time.  Unless explicitly stated otherwise, any new features or services that augment or enhance the Platform in the future shall be considered part of the Platform and subject to the Agreement.  However, we may terminate the Agreement for any or no reason, and with or without notice to you.  

1. THE PLATFORM

A. About the Platform.  The Platform is proprietary to Xplor and is protected by intellectual property laws and international intellectual property treaties. Subject to the timely payment of all Fees (as defined below) and the terms and limitations set forth in this Agreement, Xplor agrees to: (i) provide you with: a non-transferable and non-exclusive account enabling you to access and use the Platform; and a limited, non-transferable and non-exclusive license to use the software and documentation necessary to access, explore and otherwise use the Platform, or sites powered by Xplor, in real time, in a manner consistent with this Agreement; and (ii) provide you with a limited, personal, non-transferable, non-sublicensable and non-exclusive license to access and use the Platform.

B. Eligibility.  You must be at least 18 years of age to use the Platform or create an account.  

The Platform is not available to anyone under the age of 18, and are also not available to any user who was previously removed from the Platform by us or to any person barred from accessing the Platform under the laws of the United States (such as its export and re-export restrictions and regulations) or applicable laws in any other jurisdiction.

You represent and warrant to us that: (i) you are eligible to use the Platform and have the power and authority to enter into this Agreement and perform your obligations under this Agreement; (ii) all information provided by you to us is truthful, accurate and complete; (iii) you are the authorized signatory of the credit or charge card provided to us to pay the Fees; (iv) you shall comply with all terms and conditions of this Agreement; and (v) you have provided and will provide accurate and complete registration information, including, without limitation, your legal name, address and telephone number. You agree to be financially responsible for your use of the Platform (as well as for use of your account by others) and to comply with your responsibilities and obligations as stated in this Agreement.

You agree to:

(1) maintain the security of your user identification, password and other confidential information relating to your account;

(2) be solely responsible for the security, confidentiality and integrity of all messages and the content that you receive, transmit through or store on the Platform;

(3) be responsible for all charges resulting from use of your account, including unauthorized use (and will take further steps to prevent any such unauthorized use by changing your password);

(4) comply with these Terms;

(5) comply with all applicable U.S. and international laws, statutes, ordinances, rules, regulations, contracts and applicable licenses regarding your use of the Platform; and

(6) ensure you have appropriate terms and conditions in place with your customers, which include (without limitation) the provisions required by section 2 (Privacy) and equivalent provisions as contained at section 11A (Information Purposes Only) to ensure that the customers are aware of the limitations and disclaimer as relating to the Platform contained in that section.

In addition, you shall comply with all applicable Laws relating to your access to and use of the Platform, and shall only use the Platform in a manner that would be in the best interests of Xplor.  As used in this Agreement, “Laws” means applicable foreign, international, federal, state, local, or other laws, rules and/or regulations (including, without limitation, (a) any export control and/or trade restriction laws, regulations and/or other directives, and (b) any privacy or other policies, rules and/or standards that Xplor (and/or its designee(s)) may issue and/or identify from time to time regarding and/or related to the Platform and/or the operation and/or use thereof).

You agree to immediately notify us if you suspect illegal, fraudulent or abusive activity, or any activity in violation of this Agreement, including any unauthorized access to your Account.  If you notify us or if we otherwise suspect such activity, you agree to cooperate with us in any investigation and to use any prevention measures we prescribe.

C. Modification and Termination.  We may modify the Platform, from time to time, in our sole discretion.  We may change, add or remove features, or suspend or stop the Platform altogether.  We may choose to do so at any time, without any notice to you.

You may terminate your use of the Platform (in accordance with section 8D below) by deleting your account (provided you have paid all applicable Fees, as described below).  We may also limit or restrict your access to any or all parts of the Platform, or the entire Platform at any time, in our sole discretion (including to investigate any suspected or alleged misuse or unlawful use of the Platform or to cooperate with law enforcement agencies as we deem appropriate).

We may terminate these Terms or the Platform at any time, for any reason, in our sole discretion.  We can change features or impose additional limitations as we deem appropriate.  

D. Equipment. You are solely responsible for providing, maintaining and ensuring compatibility with the Platform, all hardware, software, electrical and other physical requirements for your use of the Platform, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to access and use the Platform.

2. PRIVACY

Company is responsible for maintaining, posting, and adhering to a privacy statement explaining to individuals authorized by the Company to access the Platform how their personal data will be used by the Company in connection with its use of the Platform, including that such authorized individuals’ personal data will be processed by Xplor on behalf of Company.  The privacy statement shall comply with all applicable Laws and shall be posted on a website reasonably available to authorized individuals. Failure by Company to continue to post a privacy statement, or non-adherence to such privacy statement, is grounds for immediate termination by Xplor of this Agreement.  

Company represents and warrants that it has notified the authorized individuals of Company’s processing of their personal data (including directing authorized users to Company’s privacy statement), and obtained consents or established other lawful grounds to process their personal data in connection with the Platform (including as necessary to share personal data with Xplor and for Xplor to process personal data on behalf of Company in connection with the Platform) where required.

Company acknowledges that Xplor can aggregate and anonymize personal data and may be required to process, including retain, personal data of Company’s users’ for the purposes of complying with applicable Laws and exercising legal rights. In such limited circumstances, Company acknowledges that Xplor will act as a controller.  

Where Xplor processes personal data on behalf of Company in connection with this Agreement, [these terms]  shall apply

For information about Xplor’s privacy practices or to learn more about how we handle your information provided through the Platform, please read our https://studio.xplortechnologies.com/privacy.

3. COPYRIGHT, TRADEMARKS, AND PATENTS

All content on the Platform (including but not limited to graphics, drawings, design, text, software, selection, and arrangement) is protected by copyright laws in the United States and around the world.  

Xplor, its licensors or its third-party vendors own all right, title, and interest to the Platform, all content on the Platform.  Xplor grants you a limited, non-exclusive, non-sublicensable, non-transferable, revocable right and license to access and use the Platform, including its contents, subject to your compliance with this Agreement, including, without limitation, the restrictions on the use of the Platform.  Xplor may, in its sole discretion, suspend, discontinue or terminate this license to you at any time (and from time to time) for any or no reason.

4. USER CONTENT

Where applicable on the Platform you or your users may be permitted to upload your or your user’s own content, (“User Content”).  You understand and hereby agree that all User Content is your and your users’ sole responsibility (as applicable).  We cannot guarantee that other users shall not misuse the User Content that you or your users upload.  Under no circumstances shall Xplor be liable in any way for any User Content, including, but not limited to, any errors, inaccuracies and/or omissions in any User Content, or for any liability, claim, loss, judgment, proceeding, expense (including attorneys’ fees and costs), and damage of any kind (collectively, “Losses”) incurred as a result of the use of any User Content uploaded, e-mailed or otherwise transmitted via the Site.  XPLOR IS NOT RESPONSIBLE FOR YOUR OR YOUR USERS’ MISUSE OR MISAPPROPRIATION OF ANY USER CONTENT YOU OR YOUR USERS UPLOAD TO THE SITE.

By uploading any User Content to or through the Platform, you hereby assign to Xplor, in perpetuity and without additional payment, all interests and rights relating to such User Content including, without limitation, any and all patents, copyrights, trademarks, trade secrets or other rights and protections.  You specifically waive any “moral rights” in and to the User Content.  The foregoing grant includes, without limitation, any copyrights and other intellectual property rights in and to your User Content.  You represent and warrant that: you own the User Content uploaded by you on or through the Platform or otherwise have the right to assign ownership as set forth in this section; and the uploading of your User Content on or through the Platform does not violate the privacy rights, publicity rights, patent, trademarks or copyrights, contract rights, proprietary rights or any other rights of any person or entity.  You hereby agree to promptly pay for all royalties, fees and any other monies owed to any person by reason of any User Content you  upload to or through the Site.

No confidential or additional contractual relationship is established by your uploading of User Content or is to be implied by your assignment, or our review or subsequent use, of the User Content uploaded by you.  Xplor shall not be liable for any disclosure of any User Content, including opinion(s) or suggestion(s), you or your users upload to or through the Platform.  XPLOR SHALL BE ENTITLED TO UNRESTRICTED USE OF ANY USER CONTENT IT MAY RECEIVE FROM YOU OR YOUR USERS AT OR THROUGH THE PLATFORM, FOR ANY PURPOSE WHATSOEVER, COMMERCIAL OR OTHERWISE, WITHOUT COMPENSATION TO YOU OR YOUR USERS, OR FURTHER PERMISSION AS PROVIDER OF THE USER CONTENT.

You hereby agree that you shall not:

A. Upload, post, e-mail or otherwise transmit any User Content that:

(i) is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise unlawful or objectionable (including without limitation, nudity and depiction of drug use);

(ii) you do not have a right to transmit under any Law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

(iii) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; or

B. Upload, post, e-mail or otherwise transmit any unsolicited or unauthorized advertising, promotional materials or any other form of solicitation, except in those areas that are designated for such purpose.  

User Content is not reviewed by Xplor prior to uploading and does not reflect the opinions or policies of Xplor.  XPLOR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE USER CONTENT OR THE ACCURACY AND RELIABILITY OF THE USER CONTENT OR ANY OTHER MATERIAL OR INFORMATION THAT YOU MAY ACCESS THROUGH THE SITE (INCLUDING THE ASSET DESCRIPTIONS).  Xplor assumes no responsibility for monitoring the Platform for inappropriate submissions or conduct, but reserves the right to do so.  If at any time Xplor chooses, in its sole discretion, to monitor the Platform, Xplor nonetheless assumes no responsibility for the User Content, has no obligation to modify or remove any inappropriate User Content, and has no responsibility for the conduct of the users submitting any such User Content.  Notwithstanding the foregoing, Xplor and its designees shall have the right to remove any User Content at any time, without notice and for any or no reason, including but not limited to, content that violates this Agreement or is otherwise objectionable, in Xplor’s sole discretion. You hereby agree that you must evaluate, and bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, timeliness or usefulness of such User Content.  In this regard, you acknowledge and hereby agree that you may not rely on any User Content.  Xplor may store User Content indefinitely.  However, Xplor has no obligation to store User Content or make it available to you in the future.

You are solely responsible for your or your users’ interactions through the Site or outside the Platform.

5. SUBMISSION OF IDEAS

Our policy is to not accept, review, or consider unsolicited ideas, original creative artwork, suggestions or other works (including, without limitation, ideas for new advertising campaigns, new promotions, new or improved products or technologies, product enhancements, processes, materials, marketing plans, new artwork or other works, or new product names) (collectively, “Ideas”).

Please do not submit any Ideas in any form to Xplor. Any Idea that is offered or communicated to us through the Platform or otherwise shall be the property of Xplor, and may be treated by us as non-confidential information. You agree that: (a) any Idea (including its complete contents) submitted by you to Xplor will automatically become the property of Xplor, without any compensation to you; (b) Xplor may use or redistribute any Idea and its contents for any purpose and in any way, without any compensation to you; (c) Xplor has no obligation to review any Idea; and (d) Xplor has no obligation to keep any Idea confidential, and no confidential relationship may be established by or inferred from any such Idea to, or the consideration of your Ideas by Xplor.

6. COPYRIGHT INFRINGEMENT

We respect the intellectual property rights of our users and other third parties.  If you are a copyright owner and believe that any content on the Platform infringes your copyrights, you may file a copyright infringement notification with us by email legal@transactionservices.global.  In your correspondence:

A. Identify the copyrighted work that you claimed has been infringed.  Describe the work and, where possible, include a copy or the location (e.g., URL) of an authorized version of the work. If applicable, provide a copy of the copyright registration certificate.

B. Identify the material that you believe is infringing.  Be specific and clear, and provide the material’s URL location.  It is best to include screenshots.

C. Include your contact information, including your address, telephone number, and e-mail.

D. Include the alleged infringer’s contact information, if available.

E. Include and ensure that the following is true: “I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”

F. Include and ensure that the following is true: “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

G. Sign the document (or have a person authorized to act on your behalf sign the document).

Upon receipt of your notification, we may investigate and remove the applicable material at our sole discretion.

If we become aware that one of our users has repeatedly infringed copyrights, we will take reasonable steps within our power to terminate that user’s Account.

7. PROHIBITED ACTIVITIES

By using the Platform, you agree that:

A. You will not use the Platform for any purpose that is illegal or prohibited by these Terms or any applicable law.

B. You will not use the Platform in a way that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Platform, or that could damage, disable, overburden, or impair the functioning of the Platform.

C. You will not use any robot, spider, crawler, scraper, or other automated means or interface to access the Platform or extract other user’s information.

D. You will not use or develop any third-party applications that interact with the Platform or other users’ content or information without our written consent.

E. You will not solicit login credentials from another user.

F. You will not use or attempt to use another user’s account, username, or password without their permission.

G. You will not impersonate Xplor, any employee of Xplor another user, or any other person or entity or otherwise misrepresent any affiliation, endorsement, or sponsorship between you and Xplor, and/or any other person or entity.

H. You will not upload viruses or other malicious code or otherwise compromise the security of the Platform.

I. You will not attempt to circumvent any content-filtering techniques we employ, or attempt to access areas or features of the Platform that you are not authorized to access.

J. You will not probe, scan, or test the vulnerability of our Platform or any system or network.

K. You will not use the Platform for any unauthorized purpose, including but not limited to, for any commercial purpose, including but not limited to the purpose of building a competitive product or service or for similar competitive purposes.

L. You will not encourage or promote any activity that violates these Terms.

M. You will not use the Platform or create or post any User Content that exploits, harms, or attempts to exploit or harm any person in any way.

N. You will not upload, transmit, send or cause to be sent any advertising or promotional material, including any spam, junk mail, chain letters, or similar solicitation.

O. You will not distribute (except for the purposes set forth above), rent, lease, transfer or otherwise transfer rights to, or in any way exploit, any material on the Platform, in whole or in part.

P. You will not remove any proprietary notices or labels on any material from the Platform. As between the parties, all title, ownership rights, and intellectual property rights in and to the material on the Platform, and any copies or portions thereof, shall remain in Xplor and/or its content providers.

8. SUBSCRIPTIONS

A. Fees. We charge a subscription fee ("Fees") for the use of the Platform. Fees are billed annually or monthly or both depending on the account level chosen. Xplor expressly reserves the right to change the Fees at any time, upon notice to you. By registering for an account, you agree to pay Xplor the Fees for the Platform applicable to the account level chosen. The Fees for the Platform do not include any payment for telecommunications and computer hardware, software, telecommunications access charges, lines or connections or other equipment and services required to access and use the Platform.

All Fees, Taxes (as defined herein) and other charges will be billed to your credit or charge card at the current international currency conversion rate. You are responsible for and shall pay Xplor all currency conversion charges, sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon (collectively, "Taxes") for the use of the Platform or resulting from this Agreement, whether imposed now or hereinafter by any governmental entity. You agree to promptly pay Xplor in the event of any refusal of your credit card issuer to pay any amount to Xplor for any reason. On any outstanding balance, you agree to pay the costs of collection, including attorney's fees and costs. In the event you fail to pay any amount when due, Xplor may immediately suspend or terminate this Agreement and your access to the Platform.

B. Refunds.  The Fees are non-refundable except as expressly stated in these Terms. There will be no refunds or credits for partial use of the Platform, upgrade/downgrade refunds, or refunds for months unused with an active account except as expressly stated in these Terms.

C. Cancellation.  You are responsible for all associated renewal fees relating to your account until you elect to cancel your subscription to the Platform through your account.

Please note: Notwithstanding anything to the contrary herein: (a) you must initiate the cancellation process through your account, and (b) you must complete such cancellation in accordance with the instructions provided herein.

Cancellations are not retroactive therefore if you cancel (in accordance with the provisions below) after your subscription month has begun, you will not be entitled to a refund for that month.

D. Termination.  Subscription to the Platform is available on a month-to-month or annual basis, with automatic renewal.

Either you (provided all Fees are paid in full) or Xplor may terminate your right to use the Platform, with or without cause,  on a minimum of 30 days’ notice to the other party. Notice from you to Xplor will be deemed effective from the date that you initiate the cancellation process through your account or alternatively the date that you  send notice of termination to Xplor at support@studio.xplortechnologies.com. Notice to you from Xplor will be deemed effective from the date that we initiate the cancellation of your account through the Platform or from the date that we send notice of termination to you at your email address provided on registration.  You acknowledge that any payments that come due between the notice date and the termination date (being at least 30 days after the notice date) will be paid by you and no refunds will be given for amounts due. Notwithstanding anything else in these Terms, Xplor also reserves the right to terminate or suspend your subscription without prior notice, but Xplor will confirm such termination or suspension by subsequent notice.  Where Xplor terminates your subscription (except where it is terminated because payment is overdue or because you have breached any of these Terms or any other law or regulation), Xplor will refund you any Fees that you have paid that related to the period in which you cannot use the Platform.

9. THIRD PARTY OFFERINGS AND PAYMENTS

Xplor or third parties may make third party content, data or other functionality available through, or otherwise in connection with using, the Platform (“Third Party Services”). Third Party Services are not part of the Platform, or its functionality and Xplor makes no warranties of any kind in respect of Third Party Services or other non-Xplor products or services, whether or not they are provided by an affiliate or otherwise designated as "recommended" or "approved" by Xplor. Any procurement, access or use by you of a Third Party Service, and any exchange of data between you and the provider of such Third Party Service, is solely between you and such provider. Without prejudice to any restriction in this Agreement, if you enable or install any Third Party Service for use with the Platform, you agrees (and confirm that you have the right, power and authority to agree) that Xplor may allow the provider of the Third Party Service to access your data (including personal data) as required for the interoperation of that Third Party Service with the Platform, and Xplor is not responsible for any disclosure, modification or deletion of such data resulting from such access. Xplor may restrict or disable access to any Third Party Services that are made available through the Platform without notice and for any reason, including if the provider ceases to make it available. Your use of Third Party Services: (i) is entirely at your own risk and Xplor shall have no liability whatsoever in connection with the same; and (ii) may be subject to additional terms, conditions and policies applicable to such Third Party Services (such as terms of service or privacy policies of the providers of such Third Party Services).

Payment Services. Xplor offers the ability to process payments through the Platform (“Payment Service”). Payment Services are provided by our third party payment processor partners and are deemed to be Third Party Services for all purposes under these Terms. Any procurement by you of Payment Services will be subject to a separate merchant agreement which will be solely between you and the third-party payment processor. If you use Payment Services you agree that you will comply with the terms and conditions of any applicable merchant agreements and all applicable card network rules, policies, laws and regulations, at all times while using such Payment Services. You also agrees that it will comply with the relevant portions of the Payment Card Industry (PCI) Data Security Standard (“PCI”) when collecting, accessing, storing, processing or otherwise using credit card information from its users.

To the extent that you enter into a Connected Account Agreement with Stripe (as defined on Stripe’s website and loaded here: https://stripe.com/[CountryCode]/connect/account-terms where “[Country Code]” is the two letter code for the jurisdiction in which Your Connected Account (as defined in the Connected Account Agreement) is located)  in respect of Payment Services, you authorize Xplor to perform certain activity in respect of your Connected Account (as defined in your Connected Account Agreement with Stripe) and to share certain data with Stripe in order to communicate information about transactions and refunds, account balance adjustments, handling of disputes (including chargebacks) as well as take any other actions necessary to manage your Connected Account on your behalf.

You are responsible for the accuracy and completeness of the information provided to Xplor and/or to Stripe in respect of its Connected Account (“Information”) and you are responsible for ensuring the accuracy of such Information is maintained throughout the term of your subscription. You agree to indemnify, defend and hold harmless Xplor and its affiliates against any third party claim against Xplor or its affiliates which arises as a result of any failure to provide and maintain accurate Information.

You acknowledge that, in the event that Stripe suffers loss due to activity in respect of your Connected Account (including, but not limited to, in respect of transactions, chargebacks, refunds, reversals or fines) and Stripe cannot collect any amount due to it directly from such Connected Account, Stripe will deduct such amounts from Xplor or its affiliates’ account(s) or otherwise require Xplor or its affiliates to indemnify and pay Stripe in respect of those amounts (the “Xplor Loss”). You therefore indemnify, defend and hold harmless Xplor and its affiliates against any Xplor Loss that Xplor or any of its affiliates suffer as a result of any activity on your Connected Account. You agree and authorize Xplor to instruct Stripe to withhold any Xplor Loss from any sums payable to you and to pay such withheld amount to Xplor.

The Payment Services may include functionality that enables you to receive recurring or subscription payments from your customers. If you use the Payment Services to submit recurring or subscription transactions, you agree to comply with applicable law and card scheme rules, including clearly informing customers in advance of submitting the initial transaction that they will be charged on an ongoing basis and explaining the method for unsubscribing or cancelling their recurring billing or subscription.

10. INDEMNITY

You shall defend, indemnify and hold harmless Xplor, its officers, directors, employees, agents, licensors, suppliers, and Information Providers (“Xplor Entities”) from and against all Losses arising directly or indirectly out of your: (a) use or misuse of the Platform; (b) breach or alleged breach of any of this Agreement (including any Additional Terms); (c) violation of applicable Laws; or (d) breach or alleged violation of the patent, copyright, trademark, proprietary or other rights of third parties, including with respect to any User Content you or any user uploads to the Platform.

11. DISCLAIMER

THE PLATFORM AND ITS CONTENT (INCLUDING USER CONTENT), AND ANY OTHER FEATURES, FUNCTIONALITIES OR SERVICES ASSOCIATED THEREWITH, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND. XPLOR HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY, ACCURACY, SECURITY AND NON-INFRINGEMENT.

Xplor makes no warranties that the Platform or any content or other material obtained through the Platform and other User Content, or any related services, shall meet your requirements, or that the Platform shall be uninterrupted, timely, secure, non-infringing or error-free.  You understand and hereby agree that you are responsible for any and all charges, costs and/or expenses for access to or use of the Platform, including any charges, costs and/or expenses imposed pursuant to these Terms,  and/or any Additional Terms.  No advice or information, whether oral or written, obtained by you from us, or through the Platform shall create any warranty not expressly made herein.  You may not rely on any such information or advice.  Xplor assumes no liability or responsibility for any performance degradation, interruption or delays of the Platform, errors or omissions in any content (including User Content) or other materials on or through the Platform, or damages to, nonperformance of, or errors. Xplor does not make any warranty or representation that your use of the material displayed on, or obtained through, the Platform is non-infringing of any rights of any third party.  To the extent jurisdictions do not allow the exclusion of certain warranties, some of the above exclusions may not apply to you.

Any decision or action taken by you on the basis of information or content provided on the Platform is at your sole discretion and risk.  Xplor is not responsible or liable for any such decision, or for the accuracy, completeness, usefulness, or availability of any content displayed, transmitted, or otherwise made available on the Platform.

11A. INFORMATIONAL PURPOSES ONLY.  INFORMATION AND CONTENT CONTAINED ON THE PLATFORM IS FOR INFORMATIONAL USE ONLY.  The information presented or contained on the Platform, or provided through the Platform is presented for the purpose of aiding studio management, including (without limitation) educating athletes and coaches on fitness, general health, and related training issues and topics, building workouts and creating nutrition guides. Nothing contained on the Platform or in the content is intended to be instructional for medical diagnosis or treatment. The information should not be considered complete, nor should it be relied on to suggest a course of treatment for a particular individual. It should not be used in place of a visit, call, consultation or the advice of your physician or other qualified health care provider. Information obtained from the Platform is not exhaustive and does not cover diseases, ailments, physical conditions or their treatment. Should you have any health care related questions, please call or see your physician or other qualified health care provider promptly. Always consult with your physician or other qualified health care provider before embarking on a new treatment, diet or fitness program. You should never disregard medical advice or delay in seeking it because of something you have read on the Platform.

The content and other information contained on the Platform may be compiled from a variety of sources ("Information Providers"). Neither Xplor nor any Information Providers directly or indirectly practice medicine or dispense medical services as part of the Platform. The Platform is not a substitution for the services of a physician, a health provider, or any trained health professional. Our policy does not allow medical advice, emotional advice, dietary advice, or personal advice of any kind. These concerns should be addressed and discussed with a physician, health care provider, family nutritionist or registered dietitian.

Adults should not commence any short or long-termed diet program without seeking competent medical advice.

Infants, toddlers and teenagers should only participate in a diet program under competent medical supervision.

YOU ACKNOWLEDGE AND MUST ENSURE THAT YOUR CUSTOMERS ACKNOWLEDGE THAT XPLOR IS NOT ENGAGED IN THE PRACTICE OF MEDICINE AND THAT ALL DECISIONS MADE WILL BE YOUR (OR THEIR) EXCLUSIVE RESPONSIBILITY. XPLOR EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY ADVERSE CONSEQUENCES OR DAMAGES RESULTING FROM YOUR (OR YOUR USER’S OR YOUR CUSTOMER’S) RELIANCE ON THE PLATFORM, THE CONTENT OR ANY INFORMATION PROVIDED THEREFROM.

FITNESS DISCLAIMER.  THE CONTENT IS FOR ENTERTAINMENT PURPOSES ONLY. XPLOR RECOMMENDS THAT USERS CONSULT A PHYSICIAN BEFORE BEGINNING ANY EXERCISE PROGRAM OR DIET. XPLOR IS NOT A LICENSED MEDICAL CARE PROVIDER. YOU AND YOUR USERS SHOULD UNDERSTAND THAT PARTICIPATING IN ANY EXERCISE PROGRAM OR DIET CAN RESULT IN PHYSICAL INJURY. THE FINDINGS AND OPINIONS OF AUTHORS AND PERSONAL TRAINERS EXPRESSED HEREIN ARE THOSE OF THE AUTHOR AND DO NOT NECESSARILY STATE OR REFLECT THOSE OF XPLOR.

12. LIMITATION OF LIABILITY

TO THE EXTENT PERMITTED BY APPLICABLE LAW, XPLOR WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE PLATFORM, ITS CONTENT, OR FROM ANY PRODUCTS OR THIRD-PARTY SERVICES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOST PROFITS, LOSS OF DATA, LOSS OF PRIVACY OR SECURITY, OR UNAUTHORIZED ACCESS TO OR USE OF THE PLATFORM OR USER CONTENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND EVEN IF XPLOR IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, XPLOR WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE PLATFORM OR FROM ANY PRODUCTS OR THIRD-PARTY SERVICES. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE ALSO MADE ON BEHALF OF THE XPLOR ENTITIES.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF WARRANTIES OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

13. DISPUTES; ARBITRATION

PLEASE READ THIS PROVISION CAREFULLY; IT THIS INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION.  THIS AGREEMENT ALSO INCLUDES A JURY WAIVER.

It is Xplor’s goal that the Platform and any related features and services meet your expectations and that you are satisfied.  However, there may be instances when you have a problem or dispute that needs special attention.  In those instances, Xplor is committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your issue.  Therefore, for any problem or dispute that you may have with Xplor, you acknowledge and agree that you shall first give Xplor an opportunity to resolve the problem or dispute.  This includes you first sending a written description of the problem or dispute to Xplor, c/o support@studio.xplortechnologies.com.  You then agree to negotiate with Xplor in good faith about the problem or dispute.  

CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS OR PROCEEDINGS ARE NOT PERMITTED.  YOU HEREBY WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST XPLOR.

YOU AND XPLOR HEREBY AGREE THAT YOU AND XPLOR EACH WAIVE ANY RIGHT TO A JURY TRIAL INVOLVING ANY CLAIMS OR DISPUTES BETWEEN US.

In no event shall any claim, action or proceeding by you related in any way to this Agreement be instituted more than two (2) years after the cause of action arose.

14. APPLICABLE LAW, JURISDICTION, AND GEOGRAPHIC SCOPE

This Agreement shall be governed by and construed in accordance with the laws of the United States. You agree that any legal action or proceeding between Xplor and you for any purpose concerning this Agreement shall be brought exclusively in a court of competent jurisdiction sitting in New York, New York United States.

The Platform is controlled and operated by or on behalf of TRIIB, Inc. t/a Studio XPLOR from within the continental United States of America.  XPLOR MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SITE AND/OR ITS CONTENT, OR ANY RELATED SERVICES, ARE APPROPRIATE OR LAWFUL IN ANY COUNTRIES AND/OR JURISDICTIONS OUTSIDE THE CONTINENTAL UNITED STATES, OR THAT THESE TERMS OF THIS AGREEMENT COMPLY WITH THE LAWS OF ANY OTHER COUNTRY.  Users who choose to access the Platform from locations outside the continental United States do so on their own initiative and are responsible for compliance with all applicable local laws, if and to the extent local laws are applicable.  The United States controls the export of any software, content or materials downloadable from the Platform.  This Agreement and any disputes arising under or related to this Agreement shall be governed by the laws of the State of New York, without reference to its conflict of law principles.  

15. EXPORT CONTROL

No software, content or any other materials associated with the Platform may be downloaded, exported or re-exported to countries or persons prohibited under export control laws, or to anyone on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Table of Deny Orders.  You are responsible for compliance with the laws of your local jurisdiction regarding the import, export or re-export of any such materials.  BY USING THE CONTENT AND ANY MATERIALS FROM THE SITE, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE NOT LOCATED IN, UNDER THE CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY TO WHICH SUCH IMPORT, EXPORT, OR RE-EXPORT IS PROHIBITED OR ARE NOT A PERSON OR ENTITY TO WHICH SUCH EXPORT IS PROHIBITED.  

You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and not to export, or allow the export or re-export of any material in violation of any such restrictions, laws or regulations.

Any software which is downloaded from or made available via Xplor for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable.

16. ADDITIONAL TERMS

Given the features of the Platform, we may need to create additional terms and conditions (“Additional Terms”).  These Additional Terms will be presented to you with the relevant service and will become part of your agreement with us, if you choose to use those services.  Additional Terms may also apply for promotions, sweepstakes, contest, giveaways, or similar programs.  If these Terms are inconsistent with any Additional Terms, the Additional Terms will control.

17. MISCELLANEOUS

A. Notice. Except as otherwise expressly provided herein, all notices shall be in writing. You consent to receive communications and notices from Xplor electronically. Xplor will communicate with you by e-mail, live chat, or by posting notices on the https://studio.xplor.co site. You agree that all agreements, notices, disclosures and other communications that Xplor provides to you electronically satisfy any legal requirement that such communications be in writing. All notices to Xplor must be sent to support@studio.xplortechnologies.com

B. Severability.  If any provision of this Agreement is held to be unlawful, void or unenforceable, that provision will be considered amended in a manner that eliminates the unenforceability, and all other provisions shall remain effective as originally written.

C. Waiver. No waiver of any term or condition set out in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

D. Entire Agreement. This Agreement (together with any Additional Terms applicable to the specific services on the Platform that you use) constitutes the entire, complete and exclusive agreement between you and Xplor regarding the Platform, and supersedes all prior agreements and understandings with respect to the subject matter of this Agreement.

18. CONTACT US

If you have any questions regarding these Terms or our Privacy Notice, contact us at support@studio.xplortechnologies.com

BY CLICKING “Sign up”, I CONFIRM THAT I HAVE READ AND AGREE TO THE TERMS OF THIS AGREEMENT AND UNDERSTAND THAT THIS IS A BINDING AGREEMENT BETWEEN ME (AND MY COMPANY) AND XPLOR. I AGREE THAT CLICKING “Sign up” SHALL SERVE AS MY ELECTRONIC SIGNATURE TO THIS AGREEMENT.