Terms of Service
Thank you for your interest in Xinote! We invite you to access our web sites and use our Service (as defined below), but please note that your invitation is subject to your review and agreement with certain terms and conditions. These terms and conditions are set forth in this document, and in certain other policies, guidelines and other terms or conditions that may be presented to you from time to time at other locations in our web sites in connection with specific Service offerings (all of which may be updated from time to time and are collectively referred to as our “Terms of Service”). You need not accept this requirement to agree to our Terms of Service, but if you reject our Terms of Service you do not have any right to access or use our Service. If you do access our web site and use our Service, your use shall be deemed to accept the Terms of Service and be a party to a legally binding contract with Xinote Corporation (“Xinote,” “we,” and sometimes “us”). Of course, you may also be required or elect to enter into a separate written agreement or click “accept” or “agree” to become a party to another contract with Xinote (a “Separate Agreement”), and these Terms of Service shall not be considered to supersede the specific contractual terms of the Separate Agreement. If there is any contradiction between the terms of the Separate Agreement and these Terms of Service, then the terms of the Separate Agreement shall take precedence over the contradictory terms in the Terms of Service with respect to the subject matter of such Separate Agreement.
You may wish to save a copy of these Terms of Service for your records. In any event, be sure to regularly check these Terms of Service for any updates or other changes, which shall be legally binding upon you when we post them, whether or not we provide you any other notice of such changes. The then-applicable Terms of Service will be posted at www.xinote.com/about/tos, and we will indicate the effective date of each update at the top of the Terms of Service. Your continued use of the Service after any update will be deemed to represent your consent to be bound by, and agreement with, the new Terms of Service.
1. SERVICE DESCRIPTION
The Xinote Service consists of products, computer programs, widgets, services and web sites hosted or made available by Xinote, which you may use for capturing, organizing, searching, storing, synchronizing, recognizing, sharing and transmitting any number of typed, handwritten or imaged notes or clippings on multiple computer and network platforms, now known or hereafter developed (collectively, the “Service”).
2. USE OF SERVICE
Subject to the terms and conditions within, these Terms of Service, Xinote grants you a limited, non-exclusive license to utilize the Service so long as (i) you are of legal age to form a binding contract and (ii) you are not barred from receiving the Service under the laws of the United States. In order to access and/or use the Service, you may be required to provide current, accurate, identification, contact and other information as part of the registration process and/or continued use of the Service, and you will be responsible for maintaining the accuracy and completeness of such information. You may also be provided with an account, username, password and/or an email address to access or use the Service, or to enable another to access, use and modify your notebooks (the “Account Information”). You are responsible for maintaining the confidentiality of your Account Information and, accordingly, will be fully responsible for all activities that occur under your account, including activities of others to whom you have provided your Account Information. You agree to immediately notify Xinote of any unauthorized use of your Account Information, account or any other breach of security. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Account Information secure.
You are solely responsible for obtaining the equipment and telecommunication services necessary to access the Service, and all fees associated therewith (such as computing devices and Internet service provider and airtime charges).
3. MEMBER CONDUCT
You acknowledge and agree that all information, data, text, images, software, sounds, graphics, video, messages, tags and other materials, in whatever form and technical structure, whether publicly posted or privately transmitted or stored using the Service (“Content”), are the sole responsibility of the person(s) originating such Content and introducing such Content into the Service. We reserve the right, but shall have no obligation, to pre-screen, reject, review, quarantine, delete or move any Content available with the Service, without obligation to any person.
You agree that you are responsible for your own conduct and all conduct under your account, and all Content that is created, transmitted, stored or displayed by anyone using your Account Information with the Service and for any consequences arising as a result thereof. You agree to use the Service only for purposes that are legal, proper and in accordance with these Terms of Service and any Separate Agreements, and all applicable laws and regulations in the relevant legal jurisdictions (including, without limitation, laws and regulations relating to the recording of audio, copyright laws, privacy laws and the storage and transmission of data and technology). Without limiting the foregoing, you shall be deemed to represent and warrant to Xinote that you have the unfettered legal rights and authority to permit you to submit your Content to Xinote in connection with your use of the Service, and such submission and the grant to Xinote of the rights you grant herein in connection with Xinote’s offering and operation of the Service does not infringe the rights of any person or third party.
Please ensure that you are mindful of the legal rights of others in copyrightable works, trademarks and service marks and their individual privacy, and do not reproduce or upload or publish Content that will violate their rights or subject you to legal liability. Xinote cannot and will not provide you legal or other advice on these issues, but will act in accordance with applicable law and in the best interests of Xinote and, in its discretion, the interests of those who use the Service. There are many legal reference sites available to you on the Internet and otherwise, and we encourage you to obtain advice from a lawyer familiar with such issues if you are unsure of your rights to upload, distribute or publish any Content.
By submitting to Xinote any ideas, suggestions, documents and/or proposals through the “Contact Us” interface or otherwise (collectively, “Contributions”), you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) Xinote is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) Xinote shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) Xinote may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of Xinote without any obligation of Xinote to you; and (f) you are not entitled to any accounting, compensation or reimbursement of any kind from Xinote under any circumstances.
You further agree to NOT:
(a) use our products or the Service for illegal purposes or for promotion of dangerous activities;
(b) impersonate any person or entity, including, but not limited to, an Xinote staff member, or falsely state or otherwise misrepresent your affiliation with Xinote or any other person or entity;
(c) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(d) upload, post or otherwise transmit any Content that 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);
(e) upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(f) upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation;
(j) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(h) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected or applicable to the Service;
(i) violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
(j) “stalk” or otherwise harass another person or company, or take any action invasive to another’s privacy (by posting, for example, another’s photograph, address, email, phone number or any other contact information) without permission from such other person;
(k) collect or store personal data about other users for commercial purposes;
(l) promote or provide instructional information about illegal activities, promote physical harm or injury against any government, legal entity, group or individual, or promote any act of cruelty to animals, including, but not limited to, providing instructions on how to assemble explosive device or other weapons or incendiary devices;
(m) use the Service as a forwarding means to another website;
(n) allow usage by others in such a way as to violate these Terms of Service;
(o) engage in commercial activities within the Service or on behalf of Xinote without prior approval, including but not limited to the following activities:
- (i) displaying a banner that is designed to profit you or any other business or organization; or
- (ii) displaying banners for services that provide cash or cash-equivalent prizes to users in exchange for hyperlinks to their web sites;
(p) employ tactics to prevent the full and complete display of advertisements within the Service, including, but not limited to, making style changes, customizations or overrides that effectively block or substantially impair the display of advertisements within the Service;
(q) solicit passwords or personal identifying information for unintended, commercial or unlawful purposes from other users;
(r) exceed the scope of the Service that you have signed up for, for example, accessing and using features that you do not have a right to use or deleting, adding to or otherwise changing another person’s entries or other content when you have not been granted the right to do so;
(s) access (or attempt to access) any of the Service by any means other than through the interface that is provided by Xinote (unless you have been specifically allowed to do so in a Separate Agreement), or access (or attempt to access) any of the Service through any automated means (including use of scripts, web crawlers or the like) or otherwise engage the Service in a manner reasonably likely to be harmful to the systems operating the Service or the access or use of the Service by others; and/or;
(t) reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, the Service (unless you have been specifically allowed to do so in a Separate Agreement);
(u) take any action that would be in violation of Xinote’s Trademark Brand Guidelines and Usage Requirements; and
(v) for public notebooks, you further agree NOT to upload or display content that:
- (i) contains nudity, sexually graphic material, or material that is otherwise deemed explicit by Xinote; or
- (ii) contains threatening, abusive, harassing, defamatory, libelous, invasive, hateful, or racially, ethnically or otherwise objectionable.
If you encounter any of these prohibited uses, you may use the contact form at www.xinote.com/about/contact and follow the instructions to submit the appropriate information to Xinote.
You understand that, notwithstanding our efforts and these Terms of Service, you may be exposed to offensive, indecent or objectionable Content when using the Service, and, accordingly, you use the Service at your own risk. There are commercially available services and software to limit access to material that you may find objectionable. We may, but shall have no obligation, to provide such services and software, or enable such services or software to work with the Service.
5. PROPRIETARY RIGHTS, LICENSES AND LIMITATIONS
You acknowledge and agree that Xinote (and any licensors to Xinote) own(s) all legal right, title and interest in and to the Service, including, without limitation, all software comprising a part of the Service that is either hosted on Xinote’s servers or deployed by you or a third party to enable clipping of Content originating at another party's web site, such as the Site Memory widget (the “Software”), and all intellectual property rights therein (whether registered or not and wherever existing in the world). You further acknowledge and agree that the rights in the Service, including all intellectual property rights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms of Service and any Separate Agreement. Except for the limited license rights specifically granted to you in these Terms of Service (and any rights expressly granted to you in a Separate Agreement), Xinote and its suppliers own and shall retain all rights, title and interests, including, without limitation, intellectual property rights, in and to the Service and all Software utilized therein (and all copies thereof and related materials that are delivered or made available to you with the Service).
In order to enable Xinote to operate the Service, we must obtain from you certain license and other rights to the Content you submit (so that our processing, maintenance, storage, technical reproduction, back-up and distribution, and related handling of your Content doesn’t infringe applicable copyright and other laws). Accordingly, by using the Service and posting Content, you grant Xinote a license to display, perform and distribute your Content, and to modify (for technical purposes) and reproduce such Content to enable Xinote to operate the Service. (You also agree that Xinote has the right to elect not to accept, post, store, display, publish or transmit any Content in our sole discretion.) You agree that these rights and licenses are royalty free, irrevocable and worldwide, and include a right for Xinote to make such Content available to, and pass these rights along to, others with whom Xinote has contractual relationships related to the provision of the Xinote Service, solely for the purpose of providing such services, and to otherwise permit access to your Content to third parties if Xinote determines such access is necessary to comply with its legal obligations.
Except for the limited license and other rights granted in these Terms of Service, you retain all of the rights you had in your Content before you submitted it; unless you elect to enable others to view or have access to the Content you submit to the Service, no one else should see your Content without your consent. Of course, if you do elect to publish and share any portion of your Content by placing it into one or more Shared Notebooks, then, in doing so, you are enabling each of those permitted users of the Xinote Service access to use, display, perform, distribute and modify your Content (subject to any understandings or agreements you and such users may work out without Xinote’s involvement).
As indicated above, you retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Service. Other than the limited license and other rights you grant in these Terms of Service, Xinote acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms of Service in or to any Content that you submit, post, store, transmit or display on, or through, the Service, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You agree that you are solely responsible for protecting and enforcing those rights and that Xinote has no obligation to do so on your behalf.
Xinote hereby grants you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Software provided to you by Xinote as part of the Service as provided to you by Xinote, for the sole purpose of enabling you to use and enjoy the benefit of the Service as permitted by these Terms of Service, until your rights are terminated in accordance with these Terms of Service.
6. OTHER INTELLECTUAL PROPERTY RIGHTS
It is our policy to respond to clear and complete notices of alleged copyright infringement that are compliant with the United States Digital Millennium Copyright Act (DMCA, www.copyright.gov), and otherwise be responsive to applicable copyright laws. If you believe that your work has been used or published in the Service in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide us with a formal notice in accordance with the procedure herein and containing the following information:
- (a) Identification of the specific copyrighted work that you believe has been infringed upon;
- (b) Identify the Web page URL(s) within the Service containing the copyrighted work or intellectual property that you claim has been infringed and, if possible, the contact information for the person you believe responsible for the infringing act in connection with that that work. Describe the content on the page(s) you believe infringes upon the work identified in item (a) above, including whether the content is a particular image (and describe it in detail) or written work (including the text of the copyrighted work).
- (c) Include the statement: “I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent or the law.”
- (e) Provide your name, mailing address, telephone number and e-mail address.
- A signed 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.
Send the written communication via regular mail or fax to:
Xinote Corporation, Attn: Compliance Manager, 333 W. Evelyn Ave., Mountain View, CA 94041
Fax: (650) 386-1571, Attn: Compliance Manager
Please note that we may reproduce any legal notice we receive to send to a third-party for publication and annotation, and we may post your notice in place of any removed Content. We will respond and/or take action on all complete and qualified notices within 48 business hours of receiving your correspondence and reserve the right to communicate with you via email or other means.
The Xinote subscriber who uploaded or transmitted the Content that is the subject of a notice under this Section may make a counter notification pursuant to sections 512(g)(2) and (3) of the Digital Millennium Copyright Act. If we receive a counter notification, we may reinstate the material in question.
To file a counter notification with us, you must provide a written communication in accordance with the following procedure that sets forth the items specified below. Please note that you will be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that any Content or activity is not infringing the copyright rights of others. Accordingly, if you are not sure whether certain material infringes the copyright of others, we suggest that you first contact an attorney. A sample counter notification may be found at
To expedite our ability to process your counter notification, please provide us with a formal notice containing the following information:
- Identify the specific URLs, Notebooks, Notes, or other unique identifying information of material that Xinote has removed or disabled public access.
- Provide your name, address, telephone number, e-mail address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or Santa Clara County, California if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
- Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the content identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, or that the material identified by the complainant has been removed or disabled at the URL identified and will no longer be shown.”
- Sign the counter notice.
Send the written communication via regular mail:firstname.lastname@example.org
7. SERVICE COMPONENTS
We retain the right, at our sole discretion, to implement limits to the nature or size of storage available to you, the number of transmissions and email messages, the nature or size of any index or library information, the nature of, or your continued ability to access or distribute, your Content and other data, and impose other limitations at any time, with or without notice. You acknowledge that a variety of Xinote actions may impair or prevent you from accessing your Content or using the Service at certain times and/or in the same way, for limited periods or permanently, and agree that Xinote has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any Content.
Xinote may from time to time engage certain affiliates or other third parties to provide all or part of the Service to you, and you hereby acknowledge and agree that such third party involvement is acceptable. Further, you acknowledge that in using the Service to send electronic communications (including but not limited to email and uploading Content, and other Internet activities), you will be causing communications to be sent through computer networks owned by Xinote and third parties that are located in California and other locations in the United States and other countries and that, as a result, your use of the Service will likely result in interstate data transmissions. You understand that Xinote, in performing the required technical steps to provide the Service to our users, may make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media.
Xinote may from time to time include as part of the Service computer software supplied by third parties, including (but not limited to) this Third Party Software, which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. Xinote expressly disclaims any warranty or other assurance to you regarding such third party software.
We reserve the right at any time and at our sole discretion to modify or discontinue, temporarily or permanently, the Service or any part thereof (including Software), with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Service. In connection with any modification of the Service, Xinote may automatically download and install software updates from time to time with the intention of improving, enhancing, repairing and/or further developing the Service, and you agree to permit Xinote to deliver these to you (and you to receive them) as part of your use of the Service.
You may discontinue your use of the Service at any time, for any or no reason and with or without notice. Xinote may also terminate the Service, or your access to or use of the Service or your account, with or without notice. Reasons for Xinote terminating your account or the Service include, without limitation: (a) breach or violation of these Terms of Service or any Separate Agreement, (b) your request or self-effecting account deletion, (c) an extended period of inactivity (determined in Xinote’s sole discretion), (d) your nonpayment of any fees or other sums due Xinote or any other party related to your use of the Service, (e) requests by law enforcement or other government agencies, (f) the discontinuance or material modification to the Service (or any part thereof), or (g) unexpected technical or security issues or problems. In the event of any termination, we will close your account and you will no longer be able to retrieve Content contained in that account or otherwise use the Service.
The Service may be supported by advertising revenue and may display advertisements and promotions on or in connection with the Service, and may be targeted to Content subject matter. You hereby agree that Xinote may present advertising in connection with the Service in consideration for the rights granted you to access and use the Service. Any decision to utilize advertising, and the manner, mode, extent and terms of any advertising, presented with the Service, are subject to change. We shall not be responsible or liable for any loss or damage of any sort incurred by you as a result of any such practices or changes or as the result of the presence of such advertisers on the Service, including, without limitation, any change in the cost of obtaining any Service. Furthermore, your interactions with advertisers found on or through the Service, including, without limitation, all reliance upon advertising, all commercial transactions and legal obligations associated therewith, are solely between you and such advertisers.
We may include the use of third party resources and/or links to third party websites as part of the Service. We have no control over such sites and resources and, accordingly, you acknowledge and agree that (a) we are not responsible for the availability of such external sites or resources; (b) we do not endorse and are not responsible or liable for any content or other materials available from such sites or resources and (c) we 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 such content or materials available on or through any such site or resource.
You agree to indemnify and hold Xinote, its subsidiaries, affiliates, officers, agents, employees, advertisers and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Service, any violation of these Terms of Service or any other actions connected with your use of the Service (including all actions taken under your account). In the event of such claim, we will provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
13. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Xinote EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) Xinote DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Xinote OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
14. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT Xinote, ITS SUBSIDIARIES, AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF Xinote HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICE; (v) Xinote’S ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR ACCOUNT INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT INFORMATION; (vii) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING THE SERVICE; (viii) ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED PRODUCT OR SERVICE; (ix) THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THESE TERMS OF SERVICE; OR (x) ANY OTHER MATTER RELATING TO THE SERVICE.
15. EXCLUSIONS AND LIMITATIONS
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIMITATIONS IN SECTIONS 13 AND 14 WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You agree that we may provide you with notices hereunder by email, regular mail or postings on the web site(s) related to the affected Service, in our discretion, and that we may rely upon the contact information you have provided as being accurate, complete and current.
Except where these Terms of Service or any Separate Agreement specifically provide for use of a different means or address for notice, any notice hereunder to Xinote must be delivered by email to terms AT xinote DOT com. This email address may be updated as part of any update to these Terms of Service.
17. GENERAL TERMS
(a) These Terms of Service constitute the entire agreement between you and Xinote and governs your use of the Service, except, and then only to the extent that you have entered into a Separate Agreement. These Terms of Service, as in effect from time to time, supersedes any prior agreements or earlier versions of these Terms of Service between you and Xinote for the use of the Service. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and these Terms of Service shall not affect your legal relationship with such third party.
(b) You acknowledge and agree that each affiliate of Xinote shall be a third party beneficiary to these Terms of Service and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms of Service which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third party beneficiary to these Terms of Service.
(c) These Terms of Service and the relationship between you and Xinote shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Xinote agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California. Notwithstanding this, you agree that Xinote shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any applicable jurisdiction.
(d) The failure or delay by Xinote to exercise or enforce any right or provision of these Terms of Service or rights under applicable law shall not constitute a waiver of any such provisions or rights. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.
(e) You agree that regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these Terms of Service must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.
(f) The section headings in these Terms of Service are for convenience only and have no legal or contractual effect.