Xistance Terms of Use

Updated April 27, 2017

General

This website at www.Xistance.com (the “Website”) is owned and operated by Xistance, Inc. (“Xistance”). The following terms of use (“Terms”) govern your use of the Website on any platform and in any format.
Please read these Terms carefully. If you do not agree to be bound by these Terms, do not access or use the Website. Xistance has the right, at its sole discretion, to enhance, change or discontinue all or part of the Website any time. We may update or change these Terms from time to time. If we do so, we will publish an announcement on the Website.
For information about Xistance’s Privacy Policy, please click here. Please also see our Data Tracking Policy, linked here.

User Registration and Types of Accounts

In general, you may access and use our public Website for free in keeping with these Terms. However, to access and use the Website’s non-public features (for example, to view content posted by other users), you must register and create a membership account. There are two general types of accounts:
  1. Free accounts – you must provide Account Information (defined below and in our Privacy Policy). You will not be required to pay a fee to register and use a free account. A free account allows you to view User Content, but you cannot upload, post, or submit your own User Content (defined below).
  2. Paid accounts – you must provide Account Information (as described below and in our Privacy Policy). You will have full access to the Website’s functionality and features. A paid account allows you to view User Content and upload, post, or submit your own User Content (defined below). You must be authorized to charge the credit card or account used to pay for your Xistance account.
All accounts must be used in keeping with these Terms. By using the Website, you agree to (i) provide accurate, current, and complete Account Information, (ii) maintain the security of your user ID and password at all times, and (iii) be fully responsible for use of your account. “Account Information” means your user ID, password, email address, age, date of birth, mailing address, phone number, and any other information that you provide to Xistance to register or maintain your account. If any Account Information you provide is not accurate, current, or complete, we may suspend or terminate your right to access or use the Website.

User IDs, Passwords, and Security

You are responsible for maintaining security and control over your user ID and password that you create to use the Website. We are not responsible for any losses arising out of the unauthorized use of your accounts or the Website. If you believe that the security of your user ID and/or password has been compromised, you agree to immediately change your user ID and/or password to eliminate this security risk. You will notify us of any known or suspected unauthorized use of, or disclosure related to, your account or Xistance page(s).

Minors 13 to 17

Users between the ages of 13 and 17 agree that they must obtain permission from their parents or legal guardians prior to creating and using an Xistance account. Do not create or attempt to create an account if you are 13 to 17 and you do not have the consent of your parent or legal guardian.
A parent or legal guardian may create, administer, and use an account for their child(ren) ages 13 to 17. If you create Xistance page(s) for your child(ren) ages 13 to 17 and upload, post, or submit information about the child, that child’s personal information is subject to our Privacy Policy and Data Tracking Policy.

No Children Under 13

You must be at least 13 years old to use this Website. This Website is not directed at and not intended for use by children under 13. Xistance requires its users to provide a date of birth to create an account. You are not permitted to register an account or use this Website if you are under 13 years old.
Parents or legal guardians of children under 13 may elect to establish Xistance page(s) for their children. Such pages are created under the parent or legal guardian’s account and belong to the parent or legal guardian, for use by the parent or legal guardian and not for use by the child under 13. If you create Xistance page(s) for your child under 13 and upload, post, or submit information about the child, that child’s personal information is subject to our Privacy Policy and Data Tracking Policy.

Users Outside the United States

This Website is not targeted at users outside the U.S. Please be advised that if you are located in the European Union or another region with laws related to data collection and use that may differ from U.S. law, your personal information submitted through this Website and transferred to the U.S. may not have the same legal data protection as in your jurisdiction.

Consent to Receive Communications

If you register to receive alerts, emails, or any other communications from us, you consent to receive such communications. You may opt out of these communications at any time using the prompts contained at the bottom of the communications.

Functionality and Prohibited Uses of the Website

Functionality

Xistance may limit the amount of storage space, activity, bandwidth, or any other resources available on the Website in its discretion. Periodically, the Website may become unavailable due to required maintenance or other reasons. Xistance assumes no responsibility for any errors, omissions, interruptions, deletions, defects, delays in operation or transmission, communications line failures, theft, destruction, or unauthorized access to, or alteration of, any content or information that you submit on, to, or through the Website.
THE WEBSITE AND ALL OF THE SERVICES OFFERED ON THE WEBSITE ARE PROVIDED “AS IS” WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT). IN NO EVENT WILL XISTANCE BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.

Prohibited Uses

  • You will not manipulate the Website by any means, including but not limited to the use of bots, botnets, automated scripts, or other automated or electronic means. You will not plant viruses or disturb our system through any Trojan horse, spyware, adware, malware, bot, time bomb, worm, or other harmful or malicious component, which might overburden, impair, or disrupt the Website or any Website user’s use, access, or experience.
  • You will not interfere with, tamper with, or damage the Website in any way whatsoever, including but not limited to by trespass, burdening network capacity, repeatedly posting the same or similar content, or uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code.
  • You will not circumvent, disable, or otherwise interfere with security-related features of the Website or any features that prevent or restrict use or copying of any content or enforce limitations on use of the Website.
  • You will use the Website only for private, non-commercial purposes.

Content of the Website

Proprietary Content of Xistance

All content used on and in the Website and the functionality of the Website, including without limitation the text, logos, designs, icons, software, scripts, source code, graphics, photos, images, likenesses, domain names, interactive features, and the like, and the trade secrets, trademarks, trade names, service marks, copyrights, and logos contained therein, but excluding User Content as defined below (collectively, “Xistance Content”), are owned by or licensed to Xistance and are proprietary and protected by applicable intellectual property law. No express or implied rights are conferred on you to use Xistance Content. Except as explicitly permitted by these Terms or the functionality of the Website, Xistance Content may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, modified, adapted, sideloaded, used in derivative works, or otherwise exploited for any other purposes whatsoever without our prior written consent. We may change any Xistance Content without notice.

We Do Not Control Third-Party Content

This Website may contain content, resources, and services from third parties, including but not limited to User Content (defined and discussed below). We may provide links, data, or information related to third parties and their materials. We have no control over these third parties, and, as such, we do not endorse and are not responsible or liable for any such third-party material, or its accuracy or quality. You assume full responsibility when you choose to access third-party content or follow any links that lead you to third-party websites. You should review the terms of use and privacy policies of these third-party websites.

User Content – What You Can and Cannot Submit

Subject to these Terms, users may submit, upload, and/or post to the Website data and digital media as may be permitted from time to time by the Website, which may include text, pictures, audio, video, electronic files, and other content supplied by you and other users (“User Content”). User Content includes Page Information as defined in our Privacy Policy. By submitting, uploading, or posting User Content, you acknowledge that Xistance will store User Content on Xistance’s or cloud providers’ servers for use on or by the Website. Xistance does not review, approve, or otherwise assist in the creation of User Content. Xistance may from time to time provide technical assistance if requested by a user, but Xistance is not obligated to provide any technical assistance, and technical assistance does not mean that Xistance has reviewed or approved any User Content.
For each piece of your User Content, you agree that:
  • You are responsible for your User Content. You are solely responsible for all of your User Content submitted, posted, uploaded, and/or displayed on the Website and for your interactions with other Website users.
  • You must have the rights to all content in your User Content. Your User Content, and each and every part of it, is an original work by you, or you have all full and necessary legal rights and authority, including but not limited to, copyrights, trademarks, rights of attribution, rights to credit, neighboring rights, moral rights, or any other intellectual property or proprietary rights, to use and to authorize Xistance to use, or, where relevant, to grant Xistance the licenses to the content pursuant to these Terms, on behalf of yourself and any composers, publishers, authors, or other third parties.
  • You will not infringe on the rights of others. Your User Content does not and will not infringe upon or violate the rights of any third party, including, without limitation, copyright, trademark, intellectual property rights, rights of privacy or publicity, real property rights, or rights in confidential information.
  • You will not submit prohibited content. Your User Content does not contain falsehoods, misrepresentations, or deceptive material that is unlawful, obscene, patently offensive, defamatory, libelous, threatening, sexually explicit, nude or partially nude, harassing, hateful, racially or ethnically offensive, and does not encourage conduct that would be considered a criminal offense, trespass, give rise to civil liability, violate any law, and is not otherwise inappropriate or objectionable.
  • You will not use the Website for commercial activities, spam, scams, or advertising. Your User Content does not contain any unsolicited or unauthorized advertising, promotional messages, mass email, spam, or any other form of solicitation involving commercial activities and/or sales, such as contests, sweepstakes, advertising, or pyramid schemes.
  • You waive moral rights in your User Content. You hereby irrevocably and unconditionally waive any and all moral and like rights that you may have in your User Content and hereby agree not to make any claim based on such moral or like rights with respect to our use of your User Content in keeping with these Terms.
  • We are free to use your User Content on the Website. We are free to use your User Content in keeping with the terms of these Terms and our Privacy Policy and Data Tracking Policy.
  • You will not be paid for your User Content. We are not be required to pay you or any person or entity for your User Content.
  • Your User Content will not harm anyone. Your User Content does not include information that poses or creates a safety or security risk to any person.
WE ARE UNDER NO OBLIGATION TO POST OR USE ANY USER CONTENT, AND WE MAY REMOVE USER CONTENT OF WHICH WE BECOME AWARE AT ANY TIME FOR ANY REASON IN OUR SOLE DISCRETION.
We reserve the right to decide whether a User Content is appropriate and complies with these Terms. We assume no responsibility or liability for the deletion, corruption, or loss of User Content or failure to receive or store User Content for any reason, including, without limitation, malfunctioning of any network, hardware, or software. Removal of User Content from your Xistance page(s) or account will not automatically result in the deletion of the relevant files from our or our cloud providers’ systems and servers. Xistance is not obligated to ensure the deletion of User Content from any servers or systems operated or used by Xistance or to require that any user delete any specific material. Our Privacy Policy provides additional information on retention of and access to your personal information.

User Content - Your Grant of Rights to Us

By submitting User Content on the Website, you grant us a worldwide, non-exclusive, royalty-free, sublicensable, transferable, and perpetual license to use, distribute, publicly display, and publicly perform your User Content in connection with the Website. You also grant each Xistance member a non-exclusive license to access your User Content and to use your User Content as permitted by the functionality of this Website and these Terms. The grant of rights by you to Xistance and by you to other users described in this paragraph is, in each case, subject to our Privacy Policy, which among other things describes your privacy setting choices and how we share personal information.

DMCA Copyright Notice and Repeat Infringer Policy

If you are a copyright holder who believes that any of the products, services, or content which are directly available via the Website contain infringing copies of your work, please notify us at contactus@Xistance.com.
We reserve the right to terminate a user’s access to the Website if we determine, in our sole discretion, that the user is a repeat infringer. For purposes of the Digital Millennium Copyright Act, a repeat infringer is a user who has been notified of infringing activity and has had User Content removed from the Website more than once.

Termination

If you fail, or if we suspect that you have failed, to comply with any of the provisions of these Terms, we may, in our sole discretion, without notice to you, terminate, suspend, disable, or prohibit your access to the Website. If your access has been terminated, we may, but we are not obligated to, irretrievably delete any and all content we have stored pertaining to activity from your user ID and account.
You may terminate this agreement at any time by simply discontinuing access to and use of the Website.

Legal Disputes

Choice of Law, Venue, and Jurisdiction

These Terms are governed by the laws of the State of North Carolina. You expressly agree that exclusive jurisdiction for any claim or dispute with Xistance concerning these Terms or relating in any way to your use of the Website resides in the federal and state courts located in North Carolina. YOU FURTHER AGREE THAT NEITHER YOU NOR XISTANCE WILL PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS ACTION ARBITRATION OR CLAIMS BROUGHT IN A PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE CAPACITY, IF XISTANCE IS A PARTY TO SUCH A PROCEEDING.

Indemnification

You agree to indemnify, defend, and hold harmless Xistance and its directors, officers, shareholders, employees, representatives, successors, agents, partners, clients, and contractors from and against any loss, liability, claim, demand, damage, cost, and expense (including reasonable legal fees) asserted by any third party due or arising from or in connection with your use of or conduct on the Website, your violation of these Terms, or your violation of any rights of another user of the Website. Xistance reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, which shall not excuse your indemnity obligations.

No Obligation to Participate in Disputes Between Users

If there is a dispute between users of the Website, or between a user and any third party, you understand and agree that we are under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Xistance and its officers, employees, shareholders, agents, representatives, and successors from any and all claims, demands, and damages of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Website.

Miscellaneous

Failure by Xistance to enforce any provision of these Terms shall not be construed as a waiver of any provision or right. Nothing in these Terms shall be deemed to confer any third-party rights or benefits. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Xistance without restriction. If any provision of these Terms, or any portion thereof, is held to be invalid and unenforceable, then the remainder of these Terms nevertheless remain in full force and effect.