The Sites are available to, and may only be used by, individuals who are 18 years and older and can form legally binding contracts under applicable law. By using the Sites, you represent and warrant that you meet all of the foregoing eligibility requirements and are fully able and competent to enter into the terms, conditions, representations and warranties set forth herein. If you do not meet all such eligibility requirements, you must cease all use of the Sites, and you may not in any way access or use the Sites.
The Sites operated or controlled by XCI JV, LLC and/or its subsidiaries and affiliates (collectively, " XCI") may include content, text, information, advertising, data, audio/visual materials, "applets", and software (collectively, " Content"), as well as communication tools, access to email services (through XCI or other email providers), online directories, administrative services, download areas, discussion forums, search, account management tools, access to certain content (e.g., news, weather, stocks and sports), certain diagnostic tools, games and other information (" Services"). The Services may themselves contain Content, and Content and Services are sometimes collectively referred to as the " Resources".
Your use of the Sites and any Resources provided on the Sites is subject to these Terms, which form an agreement between you and XCI regarding your use of the Sites. Certain Resources may also be subject to additional terms and conditions, whether on a particular Site or in a separate written or electronic agreement between you and XCI, and XCI's obligations with respect to such Resources are solely as defined in such other agreements, and nothing in these Terms is intended to modify them.
These Terms contain an arbitration provision and a waiver of class action rights as set forth in the "General" section at the bottom of this page. By agreeing to arbitration, each party waives its rights to have any claims heard in a court by a judge or jury. By agreeing to waive class action rights, each party agrees to assert claims against the other only in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
Registration information: Username and password
If you access the Sites anonymously, you will not be required to create a user name. However, in order to access certain Resources, you may be required to provide specific information and to create a username and password to establish an account. You agree that the information you provide in connection with establishing any account is accurate and that you will keep your information up-to-date. You are responsible for the security of all of your user names, passwords and registration information (such as unique account identifiers or historical billing information), and you are solely responsible for any use (authorized or not) of your accounts. You agree to notify immediately XCI of any unauthorized activity regarding any of your accounts or other breach of security. XCI may in its discretion suspend or terminate any of your usernames and passwords at any time with or without notice.
Management of your data
You are solely responsible for obtaining, installing, and maintaining suitable equipment and software, including any necessary system or software upgrades, patches or other fixes, which are or may become necessary to access the Sites. Minimum systems requirements apply to the use of the Sites and it is your responsibility to ensure your computer system complies with these requirements. You agree that you are solely responsible for maintaining the security of your computer(s) and all personal and other data, including without limitation, encryption of data. WE STRONGLY RECOMMEND THE USE (AND APPROPRIATE UPDATING) OF COMMERCIAL ANTI-VIRUS, ANTI-SPYWARE AND FIREWALL SOFTWARE. XCI is not responsible for back-up or restoration of your information or for any loss of or disablement of access to your information. We reserve the right to: (a) use, copy, display, store, transmit and reformat data transmitted over any XCI network and to distribute such content to multiple XCI servers for back-up and maintenance purposes; and (b) block or remove any unlawful content you store on or transmit to or from any XCI server. We do not guarantee the protection of your content or data located on our servers or transmitted across any XCI network (or other networks) against loss, alteration or improper access.
Limitations on use: Unmoderated areas and third-party links
You acknowledge and agree that XCI (a) is not responsible for invalid destinations or transmission errors; and (b) does not guarantee your ability to access all Sites or Resources or that the Resources are secure or will meet your needs.
You understand and agree that XCI (and its third party suppliers and licensors (collectively " Licensors")) have no control over third party networks or websites that you may access in the course of your use of the Sites. The inclusion of any linked sites or content from the Sites does not imply endorsement of the linked site or content by XCI. In no event shall XCI or Licensors be liable to anyone for any damage arising from or caused, directly or indirectly, by the creation or use of a third party's website, or the information or material accessed through such websites. Access to any of the third party websites linked to from any of the Sites is entirely at your own risk and is solely governed by the terms and policies applicable to third party websites, and not these Terms. Accordingly, you should carefully review the privacy and other policies and terms of such third party websites. In addition, certain areas of the Sites may contain Content from other users, and XCI and Licensors assume no responsibility for the accuracy, quality, or value of any content, data, documents, graphics, images, information, advice, or opinion contained in any emails, message boards, chat rooms or similar Services reflecting user-generated content, and we do not endorse any advice or opinion contained therein. You acknowledge that through your use of certain areas of the Sites, you may have access to Content or information which may be sexually explicit, obscene or offensive, or otherwise unsuitable for children. You agree that the supervision of use of the Sites by children is your responsibility and that XCI and Licensors are not responsible for access by you or any other users to objectionable or offensive content. XCI STRONGLY RECOMMENDS THE USE OF COMMERCIALLY AVAILABLE CONTENT FILTERING SOFTWARE. You agree that your use of the Sites and the Internet, without limitation, is your sole responsibility, is solely at your own risk and is subject to all applicable local, state, national and international laws and regulations.
The use of any Site or Resource by you or anyone using your account is subject to our Acceptable Use Policy at https://www.myzenkey.com/acceptable-use, in addition to these Terms or any other XCI agreement or policy.
- We may provide you software Content for use in connection with the Services which is owned by XCI or Licensors (" Software"). We reserve the right periodically to update or change the Software remotely or otherwise. You may use the Software only in connection with the Services and for no other purpose.
- Certain Software may be accompanied by an end user license agreement ("EULA") from XCI or a third party. Your use of the Software is governed by the terms of that EULA and by these Terms, where applicable. You may not install or use any Software that is accompanied by or includes a EULA unless you first agree to the terms of the EULA.
- For Software not accompanied by a EULA, you are hereby granted a revocable, non-exclusive, non-transferable license by XCI or Licensors to use the Software (and any corrections, updates and upgrades thereto). You may not make any copies of the Software. You agree that the Software is confidential information of XCI or Licensors and that you will not disclose or use the Software except as expressly permitted herein. The Software contains copyrighted material, trade secrets, patents, and/or proprietary information owned by XCI or Licensors. You may not modify, rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sublicense or distribute copies of the Software, or otherwise transfer the Software to any third party. You are not granted any title or rights of ownership in the Software. You acknowledge that this license is not a sale of intellectual property and that XCI or Licensors continue to own all right, title and interest, including but not limited to all copyright, patent, trademark, trade secret, and moral rights, to the Software and related documentation, as well as any corrections, updates and upgrades to it. The Software may be used in the United States only, and any export of the Software is strictly prohibited. Your license to use the Software will remain in effect until terminated by XCI or Licensors.
Copyright notice: Intellectual property and submitted material policies
XCI expects that its users will from time to time use the Site or Resources to submit suggestions or comments about XCI's products or services, including the Resources or Site. If you decide to transmit feedback, creative ideas, or materials, such as ideas for products, services, promotions, product names, technologies or processes, whether in the form of answers, questions, comments, suggestions, expressive works, plans, or otherwise (but excluding any completed software applications which shall be submitted in accordance with the last paragraph of this section) (" Creative Submissions"), via the Site(s) or Resources, XCI must protect its ability to pursue strategies or exploit ideas, whether coming from XCI's employees or from third parties, that may be the same or similar to the such submissions. By transmitting, uploading, posting or submitting any Creative Submissions, you hereby grant to XCI an irrevocable, perpetual, worldwide, non-exclusive, royalty-free, unrestricted license to use, distribute, make, exploit, practice, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display, and authorize others to do so, all such Creative Submissions in any manner whatsoever, in any medium now known or later developed, without compensation, attribution or any obligation to you or to any other person or entity. You agree that XCI is not under any obligation of confidentiality or restriction, express or implied, with respect to the Creative Submissions or other feedback.
By transmitting, uploading, posting or submitting any information or material using the Sites (including, without limitation Creative Submissions; collectively, the " Submitted Material"), you represent and warrant that: (i) such Submitted Material is not confidential, secret or proprietary information belonging to someone else; (ii) such Submitted Material does not violate these Terms and will not cause injury to any person or entity; and (iii) no other party has rights in the Submitted Material, in whole or in part, and that your transmission, posting, uploading or submission of the information does not violate any copyright, intellectual property right or other laws or obligations you may have to any person or entity. You agree that you shall have no recourse against XCI, Licensors, successors or assigns, for any alleged or actual infringement or misappropriation of any intellectual property right in Submitted Material or any portion thereof. XCI is not responsible for back-up or restoration of Submitted Material or for any loss of or disablement of access to your Submitted Material.
With respect to certain XCI initiatives that encourage third party developers to develop and submit completed software applications (such as "apps" or "widgets") for use by our customers, XCI may provide certain Site(s) or Resources that may allow you to submit such completed software applications to XCI. The license rights that you grant to XCI with respect to such submitted software applications will be solely as contained in an applicable separate agreement with XCI, or in separate license terms reflected in or references by the Site or Resource allowing for such submission.
Digital Millennium Copyright Act (DMCA)
Filing a DMCA notice alleging copyright infringement:
Pursuant to Title II of the DMCA, all claims alleging copyright infringement for material that is believed to be residing on XCI 's systems or network should be promptly sent in the form of written notice to XCI 's designated agent:
XCI JV, LLC
ATTN: Designated Agent for DMCA Notices
NOTE: No other notices or communications should be sent to the designated agent, who is appointed solely for the purpose of receiving notices of claims alleging copyright infringement under the DMCA.
Specific requirements for proper notification of claimed infringement are set forth in the DMCA (see 17 U.S.C. § 512(c)(3)). Valid notification must be a written communication that includes all of the following elements:
- Signature of copyright owner or person authorized to act on behalf of the owner;
- Identification of copyrighted work claimed to be infringed;
- Identification of the material claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact the complaining party (address, phone number and, if available, email address);
- A statement that the complaining party has a good faith belief that use of the material in the manner complained is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the exclusive right allegedly being infringed.
It is the policy of XCI that upon receipt of a valid DMCA notice XCI will remove or disable access to allegedly infringing material.
NOTE: There are substantial penalties for false claims (see 17 U.S.C. § 512(f) - providing sanctions for material misrepresentations of copyright infringement).
Filing a DMCA counter-notification:
If a notice of alleged copyright infringement under the DMCA has been wrongly filed against you, you may submit a counter-notification to XCI's designated agent. Specific requirements for a proper counter-notification are set forth in the DMCA (see 17 U.S.C. § 512(g)(3)). A valid counter-notification must be a written communication that includes all of the following elements:
- A physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of federal district court for the judicial district in which the address is located, or if your address is outside of the U.S., for any judicial district in which the service provider may be found, and that you will accept service of process from the complainant.
Upon receipt of a valid counter-notification, XCI will forward it to the original complainant who submitted the DMCA notice alleging copyright infringement. The original complainant will then have ten (10) days to notify XCI that it has filed a lawsuit relating to the allegedly infringing material otherwise XCI will restore the removed material or cease disabling access to it.
Repeat Infringer Policy
Pursuant to Section 512 of the DMCA, it is XCI's policy to terminate the account of repeat copyright infringers in appropriate circumstances.
The XCI names and logos and all related product and service names, design marks and slogans are trademarks, service marks, registered trademarks or registered service marks of XCI and may not be used in any manner without the prior written consent of XCI. All other trademarks and service marks are the property of their respective owners.
How to report child pornography
Child pornography is illegal under federal law and many state laws, and using XCI services to view, store or distribute it is a violation of these Terms. To be clear, the XCI network may not be used by customers in any fashion for the transmission or dissemination of images containing child pornography.
XCI wants to make the Internet safe for everyone. If you see what you believe is child pornography, or observe any other illegal activity involving children, you can report it directly to the National Center for Missing and Exploited Children (" NCMEC") through CyberTipline or by calling NCMEC at 1-800-843-5678.
Disclaimers of warranty
XCI AND LICENSORS PROVIDE THE SITES AND RESOURCES "AS IS", "AS AVAILABLE "AND "WITH ALL FAULTS" AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITES IS WITH YOU. SHOULD THE SITES OR ANY RESOURCE BE DEFECTIVE, YOU, AND NOT XCI OR LICENSORS, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING AND REPAIR. XCI AND LICENSORS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SITES AND RESOURCES (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, XCI AND LICENSORS MAKE NO WARRANTY THAT THE SITES OR RESOURCES WILL MEET YOUR REQUIREMENTS OR THAT THE SITES OR RESOURCES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE OR THAT DEFECTS IN THE SITES WILL BE CORRECTED, OR THAT ANY CONTENT OR OTHER MATERIAL ACCESSIBLE FROM THE SITES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ADVICE OR INFORMATION GIVEN BY XCI, ITS AFFILIATES, LICENSORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. XCI AND LICENSORS MAKE NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITES OR RESOURCES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SITES OR RESOURCES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SITES OR RESOURCES OR FROM XCI OR ITS SUPPLIERS OR LICENSORS (OR THE RESPECTIVE OFFICERS, DIRECTORS, AFFILIATES, EMPLOYEES, OR AGENTS OF ANY SUCH ENTITIES) (COLLECTIVELY, " THE XCI PARTIES") SHALL CREATE ANY WARRANTY. THE XCI PARTIES DISCLAIMS ALL EQUITABLE INDEMNITIES.
Limitation of liability
IN NO EVENT WILL ANY OF THE XCI PARTIES BE LIABLE FOR (A) ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR (B) ANY DAMAGES WHATSOEVER IN EXCESS OF ONE HUNDRED UNITED STATES (US$100.00) DOLLARS (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOSS OF USE OR OTHER INTANGIBLE LOSSES), ARISING OUT OF OR IN CONNECTION WITH THE SITES (INCLUDING, WITHOUT LIMITATION, USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SITES OR RESOURCES), WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT, STATUTE, OR ANY OTHER LEGAL THEORY AND EVEN IF ANY OF THE XCI PARTIES HAS BEEN ADVISED (OR SHOULD HAVE KNOWN) OF THE POSSIBILITY OF SUCH DAMAGES.
You agree to indemnify, defend and hold harmless The XCI Parties from and against all losses, expenses, damages and costs, including reasonable attorneys' and experts' fees, arising from or related to claims made by any third-party due to or arising out of (a) Submitted Material or any other content you (or any parties who use your computer, with or without your permission) submit, post or upload to or transmit through the Sites or Resources, (b) your use of the Sites or Resources (or use of the Sites or Resources by any parties who use your computer, with or without your permission), (c) your violation of these Terms and/or your violation of any laws or regulations or the rights of another through the use of the Sites or Resources (or such violations by any parties who use your computer, with or without your permission). These indemnity obligations will survive termination of your relationship with The XCI Parties or your ceasing to use the Sites or Resources. The XCI Parties reserve the right to assume the defense and control of any matter subject to indemnification by you, in which event you will cooperate with The XCI Parties in asserting any available defenses.
International and export issues
Certain subsidiaries or affiliates of XCI only provide certain regulated telecommunications and other services in certain portions of the United States. If you choose to access any Site from outside the United States, you are responsible for compliance with all applicable laws, rules, regulations, decrees and orders (collectively, " Laws"). You agree to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with your use of the Sites and you agree that you shall not transfer, or authorize the transfer, of any Content to a prohibited country or otherwise in violation of any Laws. In particular, but without limitation, the Content may not be exported or re-exported, in violation of any Laws, (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By using any Content subject to any such restrictions and regulations, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Changes to the sites and these terms
All information posted on the site is subject to change without notice and XCI reserves the right and sole discretion to change, limit, terminate, modify at any time, temporarily or permanently cease to provide the Sites or any part thereof to any user or group of users, without prior notice and for any reason or no reason. XCI reserves the right, from time to time, to amend or change these Terms (including any of the policies which may be applicable to your use of the Sites) by posting such revisions to the page located in this section (or successor web site). You agree to visit that Web site periodically to be aware of and review any such revisions. Changes to these Terms shall be effective upon posting, and you understand and agree that if you use the Services after the date on which the Terms have changed, XCI will treat your use of the Services as acceptance of the updated Terms, with prospective effect.
These Terms, together with (i) any additional terms to which you agree when using particular elements of a given Site, and, where applicable, (ii) any separate written or electronic agreement between you and XCI, constitute the entire and exclusive and final statement of the agreement between you and XCI with respect to the subject matter hereof, superseding any prior agreements or negotiations between you and XCI with respect to such subject matter. XCI's failure to exercise or enforce any provision of these Terms shall not constitute a waiver of such provision. If any provision of these Terms shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions. You agree that these Terms shall be governed and construed in accordance with the laws of the State of New York, and any legal action or proceeding between XCI and you for any purpose concerning these Terms shall be brought exclusively in a federal or state court of competent jurisdiction sitting in New York. XCI may assign its rights and duties under these Terms to any party at any time without notice to you. Your rights and duties under these Terms are not assignable by you without our written consent. These Terms do not provide any third party (other than The XCI Parties) with a remedy, claim, or right of reimbursement.
Entire Agreement. These Terms, together with any disclaimers that may appear on the Sites, shall constitute the entire agreement between you and XCI regarding the Sites. The section headings in these Terms are for convenience only and have no legal or contractual effect.
Notices. XCI may provide you with notices, by email, regular mail, or similar methods regarding the Site. For all requests and notices regarding the Site, your communication must be sent via email to email@example.com
Governing Law. You and XCI each agree that these Terms and any dispute arising out of or relating to these Terms shall be governed by the laws of the State of New York without regard to its conflict of law provisions.
Dispute Resolution by Arbitration. Any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to these Terms, and in which XCI is a party, shall be settled exclusively by arbitration. Arbitration proceedings shall by conducted in the City of New York, in the State of New York in the English language, and, at the request of either party, result in a written statement of the facts and legal reasoning supporting the decision of the arbitrator(s). The costs of arbitration shall be borne equally by the parties. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Waiver of Class and Collective Actions. To the fullest extent permitted by applicable law, YOU AND XCI AGREE THAT (i) ANY CLAIM BROUGHT BY YOU OR XCI AGAINST THE OTHER THAT ARISES FROM OR RELATES TO THESE TERMS OR USE OF THE SITE SHALL NOT BE ASSERTED AS A CLASS ACTION OR COLLECTIVE ACTION, WHETHER IN ARBITRATION, COURT OR ANY OTHER FORUM; AND (ii) THE ARBITRATOR(S) MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING AND MAY NOT AWARD CLASS-WIDE RELIEF. Disputes between the parties arising from or relating to these Terms or use of the Site(s) shall be resolved only on an individual basis and will not be joined or consolidated with any other proceeding that involves any claim or controversy of any other party. Neither party shall have a right to resolve such disputes on a class action basis or on any basis involving such disputes brought in a purported representative capacity on behalf of other persons or entities similarly situated or the general public.
Legal Expenses. In the event that any action, suit, or other legal or administrative proceeding arising out of or relating to these Terms is instituted or commenced by either party against the other party, the prevailing party shall be entitled, in addition to any other rights or remedies it may have, to recover its expenses relating to such proceeding from the non-prevailing party, including reasonable attorneys' fees, court costs, and arbitration fees and expenses.
Waiver and Severability of Terms. The failure of XCI or you to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms 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 these Terms remain in full force and effect.
Statute of Limitations. Each party agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Site(s) or to these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Last Modified: September 13, 2019