XAP Terms of Service
1. ACCEPTANCE OF TERMS
Congratulations on signing up for XAP Realty, a service(“the Service”) provided by Xap Entertainment LLC (“XAP”)! By signing up, you (referred to below as “User(s)” or “you”) agree to accept and abide by XAP’s guidelines as delineated in the following terms and conditions (“T&C”). Therefore, while using the Service, you and all Users are subject to the T&C, which may be updated at anytime with or without notice to Users. The T&C are always accessible to our Users at www.xaprealty.com/terms.
2. DESCRIPTION OF PRODUCTS & SERVICE
XAP Realty is a text message (“SMS”) service provided to real estate agents that allows each agent to create a message, via an online Administrative procedure. The personalized message, which may be up to 160 characters, can be sent to prospects upon request (referred to as an “opt in”).
By accepting the XAP Realty T&C, you agree to receive email updates pertinent to your account, including, but not limited to, changes in the T&C, updates to the services, and billing inquiries. These communications are considered part of the XAP Realty Service. XAP Realty is provided to each customer “AS-IS”, however, XAP will continually be upgrading the Service to meet the highest standards of the real estate industry. XAP Realty assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any User communication or personalization settings. Each User is responsible for obtaining access to the Service and that access may depend on third party fees (such as fees charged by Internet service providers or airtime charges). You are responsible for such fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service.
3. PAYMENT FOR TERMS FOR USE
XAP Realty provides pricing plans based on the number of an agent’s real estate signs and the listing ID’s that are associated with each sign. The XAP Realty Service is based on the number of mobile marketing codes that are purchased:
$5.00 /Month Per Mobile Marketing Code
(includes Unlimited Text Leads)
All billing will be invoiced and paid on a monthly basis using automatic credit card charging, unless otherwise established and approved by a XAP Entertainment officer. Upon signing up for the Service, you agree to allow XAP Realty to charge your credit card for the fees incurred on a monthly basis. Depending on the level of Service for which a User has signed up (i.e. the number of signs), there is a monthly charge. All charges will appear on your monthly invoice; and standard text messaging fees apply to Users of the Service and agent’s customers (eg. The end user’s of the service). Upon cancellation of the Service, Users agree to remove all signage provided by, or used in connection with, XAP Realty.
4. XAP REALTY PRIVACY POLICY
When a customer (end-user) sends a text message to XAP Realty using the XAP Realty short code, it is logged in our password-protected online administration platform, which includes the phone number, carrier, date and time that the message was sent. The customer’s phone number may be sent to the agent depending on the terms of use that were posted on the signage. We will not rent or sell your phone number to any third party, and we will not use the customer’s number to subscribe the customer to any XAP Entertainment services, which the customer did not personally and knowingly opt-in. By sending a text message, and thus requesting information from XAP Realty the customer is agreeing or opting in to receive information relevant to the keyword used in your message. The customer’s information may also be collected by his/her wireless service provider regarding SMS usage. Please contact your carrier for more information regarding their privacy policies.
5. MEMBER ACCOUNT, PASSWORD AND SECURITY
You will receive a password and account upon completion of the Service's registration process. You are responsible for maintaining the confidentiality of the password and account, and are also fully responsible for all activities that occur under your password or account. You agree to (1) immediately notify XAP Realty of any unauthorized use of your password or account or any other breach of security, and (2) ensure that you exit from your account at the end of each session. XAP Realty cannot and will not be liable for any loss or damage arising from your failure to comply with this Section
6. MEMBER CONDUCT
You agree not to use the Service to:
upload, post, email, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, torturous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; harm minors in any way; upload, post, email, transmit or otherwise make available any content that you do not have a right to make available 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); upload, post, email, transmit or otherwise make available any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party; upload, post, email, transmit or otherwise make available 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;
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 to the Service; intentionally or unintentionally 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.
You acknowledge that XAP Realty may or may not pre-screen content, but that XAP Realty and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any content that is available via the Service. Without limiting the foregoing, XAP Realty and its designees shall have the right to remove any content that violates the T&C or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with the use of, any content, including any reliance on the accuracy, completeness, or usefulness of such content.
You acknowledge, consent and agree that XAP Realty may access, preserve, and disclose your account information and content if required to do so by law, or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the T&C; (c) respond to claims that any content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of XAP Realty, its Users and the public.
You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by XAP Realty and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
7. INDEMNITY
You agree to indemnify and hold XAP Realty, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of the T&C, or your violation of any rights of any party.
8. NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
9. MODIFICATIONS TO SERVICE
XAP Realty reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that XAP Realty shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
10. TERMINATION
You agree that XAP Realty may, under certain circumstances and without prior notice, immediately terminate your XAP Realty account and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the T&C or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (f) your engagement in fraudulent or illegal activities, and/or (g) nonpayment of any fees owed by you in connection with the Services. Termination of your XAP Realty account includes (a) removal of access to all offerings within the Service (b) deletion of your password and all related information, text associated to codes, activity reports and content associated with or inside your account (or any part thereof), and (c) barring you from further use of the Service. Further, you agree that all terminations for cause shall be made in XAP Realty's sole discretion and that XAP Realty shall not be liable to you or any third-party for any termination of your account or access to the Service.
11. XAP REALTY'S PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by XAP Realty, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
12. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. XAP REALTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
XAP REALTY MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, AND (iv) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM XAP REALTY OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE T&C.
A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE SERVICE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SERVICE. IMMEDIATELY DISCONTINUE USE OF THE SERVICE AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SERVICE -- DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
13. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT XAP REALTY 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 OR OTHER INTANGIBLE LOSSES (EVEN IF XAP REALTY 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 SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (iv) ANY OTHER MATTER RELATING TO THE SERVICE.
14. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 17 AND 18 MAY NOT APPLY TO YOU. NOTWITHSTANDING THAT SOME OF THE SECTIONS 17 AND 18 MAY NOT APPLY, THE OTHER LIMITATIONS OF SECTIONS 17 AND 18 REMAIN IN FULL FORCE AND EFFECT.
15. NO THIRD PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in this T&C, there shall be no third party beneficiaries to this Agreement.
16. NOTICE
XAP Realty may provide you with notices, including those regarding changes to the T&C, by email, regular mail, or postings on the Service.
17. TRADEMARK INFORMATION
The XAP Realty logo, trademarks and service marks, and other XAP Realty logos and product and service names are trademarks of XAP Entertainment, LLC (the "XAP Realty Marks"). XAP Realty grants you permission to use the XAP Realty Marks on advertising brochures, sign riders and other real estate-oriented marketing campaigns. All other uses not associated with marketing your real estate business are expressly prohibited without the prior written approval of XAP Realty.
18. GENERAL INFORMATION
Entire Agreement. The T&C and the terms of the Plan which you elect to use constitute the entire agreement between you and XAP Realty and govern your use of the Service, superseding any prior agreements between you and XAP Realty with respect to the Service.
Choice of Law and Forum. The T&C and the relationship between you and XAP Realty shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and XAP Realty agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Los Angeles County, California.
Waiver and Severability of Terms. The failure of XAP Realty to exercise or enforce any right or provision of the T&C shall not constitute a waiver of such right or provision. If any provision of the T&C 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 T&C remain in full force and effect.
No Right of Survivorship and Non-Transferability. You agree that your XAP Realty account is non-transferable and any rights to your XAP Realty or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the T&C must be filed within one (1) year after such claim or cause of action arose, or be forever barred.
The section titles in the T&C are for convenience only and have no legal or contractual effect.
26. VIOLATIONS
Please report any violations of the T&C to our Customer Care group, support@xaprealty.com.