Terms of use

LAST UPDATED - March 16, 2014

 

1.You Agree to These Terms by Using this Site

Your access to, and use of, www.xaviant.com, including the content, Services and Software provided thereon (collectively, the "Site") are subject to the following Terms of Use and all applicable laws and regulations (the “Agreement”).  If you do not agree to and accept, without limitation or qualification, these Terms of Use and this Agreement, please exit the Site immediately.

 

2. Ownership of Content

The Site and all of its contents including, but not limited to, all text, images, audio and video ("Content") are owned and copyrighted by Xaviant, LLC (“Xaviant”), its subsidiaries, sponsors or affiliated companies (collectively, "Affiliated Entities") or others with all rights reserved unless otherwise noted.  Any Content that is a trademark, logo or service mark is also a registered and/or unregistered trademark of Xaviant or others.  Your use of any Content, except as provided in these Terms of Use, without the written permission of the Content owner is strictly prohibited.  You are also advised that Xaviant will aggressively enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution, when applicable.

 

3. Your Use of the Site

Xaviant grants you permission to use the Site as follows:

  • This Site contains various Content as stated above in paragraph 2.
  • The only Content you may download from this Site is Content made available for downloading, such as screensavers and wallpapers.  You may download Content expressly made available for downloading for non-commercial, personal use, and provided that you also retain all copyright and other proprietary notices contained on the Content.
  • You must comply with all applicable laws, rules and regulations while using the Site; you may not distribute, modify, copy (except as set forth above), transmit, display, reuse, reproduce, publish, license, create derivative works from, transfer, sell or otherwise use Content without the express and written permission of Xaviant.
  • You are prohibited from using the Site to post or transmit any infringing, threatening, false, misleading, abusive, harassing, libelous, defamatory, vulgar, obscene, scandalous, inflammatory, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offence, give rise to civil liability or otherwise violate any law (“Prohibited Material”).  Xaviant will fully co-operate with any law enforcement authorities or any court order requesting or directing Xaviant to disclose the identity of anyone posting or transmitting any Prohibited Material.  What Xaviant considers to be Prohibited Material may or may not be the same as what the general the general public considers to be inappropriate and therefore Xaviant reserves the right to decide, in its sole discretion, except for that which is strictly prohibited and defined by law, what is inappropriate and therefore that defines Prohibited Material.
  • You are prohibited from using the Site to impersonate any person or entity, including any Site moderator or any representative of Xaviant or its Affiliated Entities, or falsely stating or otherwise misrepresenting your affiliation with any person or entity in connection with the Site; or stating or implying that Xaviant endorses any statement you make.
  • You are prohibited from using the Site to advertise or perform any commercial solicitation, or otherwise exploiting for any commercial purposes any portion of, use of or access to the Site.
  • You are prohibited from using the Site to post or transmit any virus, worm, Trojan Horse, Easter egg, time bomb, spyware or other computer code, file or program that is harmful or invasive or may, or is intended to, damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment of Xaviant or any other person, entity or governmental body.
  • You are prohibited from using the Site to violate the legal rights of others or harvest or collect personally identifiable information about users of the Site.
  • You are prohibited from restricting or inhibiting any other person from use of the Site, and from interfering with or disrupting the operation of the Site or the servers or networks used to make the Site available or violating any requirements, procedures, policies or regulations of such networks.
  • You are prohibited from modifying, adapting, translation, reverse engineering, decompiling or disassembling any portion of the Site. 

 

4. Software, Services, and User Content

Xaviant may from time to time provide users of the Site with access to certain specialized content and interactive services through which you are able to display or post information and materials, including but not limited to community forums (such content and services, collectively, the "Services"), and certain software tools that can be used for various purposes, including but not limited to, to view video provided by the Site, to interact with other Site users or to create content (the foregoing software and tools, collectively, the "Software").  

The Services and Software, the information and materials made available through the Site and all software used to make the Site available are and shall remain the sole and exclusive property of Xaviant and its licensors and suppliers, and are protected by copyright, trademark, patent, and/or other proprietary rights and laws, both under US and internationally law.  Subject to your compliance with these Terms of Use, and solely for so long as you are permitted by Xaviant to access and use the Site, you may download and view one (1) copy of any Content and Software on the Site to which Xaviant provides you access or download, on any single computer, solely for your personal, non-commercial home use, provided that you keep intact all copyright and other proprietary notices.  Except as otherwise expressly authorized in writing in advance by Xaviant, you agree not to reproduce, modify, rent, lease, loan, sell, distribute, adapt, translate, create derivative works based (whether in whole or in part) on, reverse engineer, decompile or disassemble any Services or Software, all or any part of the Site, or any materials made available through the Site.  Certain Software may be governed by an additional end user license agreement or "EULA" to which you may be required to agree before using such Software, such EULA to be found on this Site.

With respect to information or materials that you choose to display or post on any interactive services of the Site ("User Content"), you grant Xaviant and the Affiliated Entities a worldwide, non-exclusive, transferable, royalty-free, perpetual, irrevocable right and license, without compensation to you: (a) to use, reproduce, distribute, adapt (including without limitation edit, modify, translate, and reformat), derive, transmit, display and perform, publicly or otherwise, such User Content (including without limitation your voice or likeness as embodied in such User Content), in any media now known or hereafter developed, for Xaviant’s and the Affiliated Entities' business purposes, and (b) to sublicense the foregoing rights, through multiple tiers, to the maximum extent permitted by applicable law.  The foregoing licenses shall survive termination of this Agreement for any reason.  For each item of User Content, you represent and warrant that you have all rights necessary for you to grant the licenses granted in this section (including without limitation rights in any musical compositions and/or sound recordings, video clips or graphic images embodied or embedded in any User Content), and that such User Content (as applicable), and your provision or creation thereof through the Site, complies with all applicable laws, rules and regulations and does not infringe or otherwise violate the copyright, trademark, trade secret, privacy or other intellectual property or other rights of any third party.  You further irrevocably waive any "moral rights" or other rights with respect to attribution of authorship or integrity of materials regarding each item of User Content that you may have under any applicable law under any legal theory. 

For any User Content, you acknowledge and agree that (a) Xaviant reserves the right (but has no obligation) to evaluate all User Content before allowing it to be posted on the Site or otherwise stored in connection with the Site; and (b) may do one or all of the following, at its sole discretion: (i) monitor User Content; (ii) alter, remove, or refuse to post or allow to be posted or stored User Content; (iii) monitor and/or filter any of your communications through the Site (including without limitation by means of blocking or replacing expletives or other language that may be deemed harmful or offensive); and/or (iv) disclose User Content or any communication through the Site, and the circumstances surrounding the transmission thereof, to any third party in order to operate the Site; to protect Xaviant, the Affiliated Entities, and their respective sponsors, employees, officers, directors, shareholders, agents, representatives and affiliates, and the Site's users and visitors; to comply with legal obligations or governmental requests; to enforce these Terms of Use; or for any other reason or purpose.  In addition, Xaviant has no control over, and Xaviant and the Affiliated Entities shall have no liability to you for any damages resulting from, the use (including without limitation re-publication) or misuse by any third party of information voluntarily made public by you through any User Content or any other part of the Site.

Please note that other Site visitors may post messages or make statements in the Services that are inaccurate, misleading, deceptive, or offensive.  Xaviant and the Affiliated Entities neither endorse nor are responsible for any opinion, advice, information or statements made in any Services by third parties.  Without limitation, Xaviant and the Affiliated Entities are not responsible for any information or materials made available through the Services (including without limitation errors or omissions in postings or links or images embedded in messages or profiles) or results obtained by using any such information or materials.  Under no circumstances will Xaviant, the Affiliated Entities, or their respective employees, officers, directors, shareholders, agents, representatives or affiliates, be liable for any loss or damage caused by your reliance on such information or materials.  The opinions expressed in the Services reflect solely the opinions of the individuals who submitted such opinions, and may not reflect the opinions of Xaviant or any of the Affiliated Entities.

IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE IN A SUBMISSION OR IN ANY USER CONTENT, YOU DO SO AT YOUR OWN RISK AND XAVIANT ASSUMES NO LIABILITY IN EQUITY OR LAW FOR SUCH DISCLOSURE UNDER ANY LEGAL THEORY.

 

5. Registration; User Names and Passwords

You may be required to register with Xaviant in order to access certain areas of the Site.  With regard to any such registration, Xaviant may refuse to grant you, and you may not use, a user name (or e-mail address) that is already being used by someone else; that may be construed as impersonating another person; that belongs to another person; that violates the intellectual property or other rights of any person; that is offensive solely determined by Xaviant, regardless of public opinion or general public acceptance; or that Xaviant rejects for any other reason in its sole discretion.  You are solely responsible for maintaining the confidentiality of any password you may use to access the Site, and you agree not to transfer your password or user name, or lend or otherwise transfer your use of or access to the Site, to any third party, and if you do so you agree that we may immediately terminate your use of the Site.  You are fully responsible for all interaction with the Site that occurs in connection with your password or user name. You agree to immediately notify Xaviant of any unauthorized use of your password or user name or any other breach of security related to your account or the Site, and to ensure that you "log off"/exit from your account with the Site (if applicable) at the end of each session.  Xaviant is not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations.  

 

6. Privacy

Any personal data (for example, your name, address, telephone number or e-mail address) that you transmit to the Site by electronic mail or otherwise will be used by Xaviant in accordance with the Site's Privacy Policy as posted and updated from time to time.  Any other communication or material you transmit to the Site, such as questions, comments, suggestions or the like, will be treated as non-confidential and non-proprietary.  Email and other transmissions will not be encrypted or otherwise secured.  You represent and warrant that any information you provide in connection with your use of the Site is and shall remain true, accurate and complete, and that you will maintain and update such information regularly.  You agree that if any information you provide is false, inaccurate, obsolete or incomplete, we may immediately terminate your use of the Site.

 

7. Disclaimer of Warranties

THE SITE AND ALL SOFTWARE, SERVICES, CONTENT AND USER CONTENT MADE AVAILABLE THROUGH THE SITE ARE SUBJECT TO CHANGE AND ARE PROVIDED TO YOU "AS IS" WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you.  Without limiting the foregoing, Xaviant neither warrants nor represents that your use of the Site, any Software, Services, Content or User Content will not infringe the rights of any third parties nor that any of the foregoing will be accurate, complete or up-to-date.  Additionally, with reference to any postings, submissions and the like that may be on the Site, Xaviant assumes no responsibility or liability arising from any infringing, threatening, false, misleading, abusive, harassing, libelous, defamatory, vulgar, obscene, scandalous, inflammatory, pornographic or profane material, or any material that could constitute or encourage conduct that would be considered a criminal offence, give rise to civil liability or otherwise violate any law, contained in any such locations on the Site.

 

8. Exclusion of Liability

YOUR USE OF THE SITE OR ANY SOFTWARE, SERVICES OR MATERIALS AVAILABLE THROUGH THE SITE IS AT YOUR OWN RISK.  NEITHER XAVAINT, NOR ANY OF ITS AFFILIATED ENTITIES, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SITE, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, SHAREHOLDERS, LICENSORS AND REPRESENTATIVES, ARE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THIS SITE, THE SERVICES, SOFTWARE, CONTENT OR USER CONTENT WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, USE, DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SITE, THE SERVICES, SOFTWARE, CONTENT OR USER CONTENT, OR UNAUTHORISED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES.  IN PARTICULAR, AND WITHOUT LIMITATION, NEITHER XAVIANT NOR ANY OF ITS AFFILIATED ENTITIES WILL BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITE, THE SERVICES OR SOFTWARE, OR RESULTING FROM ANY CONTENT OR USER CONTENT POSTED ON THE SITE BY XAVIANT OR ANY THIRD PARTY.  YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE IS TO STOP USING THE SITE.  Please note that some jurisdictions may not allow the exclusion of certain damages, so some of the above exclusions may not apply to you.

 

9. Links to Third Party Sites

The Site may contain links to sites owned or operated by parties other than Xaviant (“Third Party Sites”).  Such Third Party Sites are provided for your convenience only.  Xaviant does not control, and is not responsible for, the content or privacy policies on, or the security of, such Third Party Sites.  Without limiting the foregoing, Xaviant specifically disclaims any responsibility if such Third Party Sites:

  • infringe any third party's intellectual property rights
  • are inaccurate, incomplete or misleading
  • are not merchantable or fit for a particular purpose
  • do not provide adequate security
  • contain viruses or other items of a destructive nature
  • and/or are libelous or defamatory.

Xaviant does not endorse the content, or any products or services available, on Third Party Sites.  If you establish a link to such Third Party Sites, you do so at your own risk and without actual or apparent permission of or from Xaviant.

 

10. Export Control 

Software and other materials from this Site may be subject to United States Export Control.  The United States Export Control laws prohibit the export of certain technical data and software to certain territories.  No software from this Site may be downloaded or exported: 

  • into (or to a national or resident of) Cuba, North Korea, Iran, Sudan, Syria, or any other country to which the United States has embargoed goods; or 
  • to anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders (collectively, the “Prohibited List”). 

Xaviant does not authorize the downloading or exportation of any software or technical data from this Site to any jurisdiction prohibited by the United States Export Laws or to anyone on any the Prohibited List.  By downloading or using any Software, 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 the Prohibited List, and if you do so, you may be subject to penalty under US Federal Law, including but not limited to, incarceration and monetary fines.

 

11. Indemnity 

You agree to defend, indemnify and hold harmless Xaviant, the Affiliated Entities and any other party involved in creating, producing or delivering the Site, and their respective directors, officers, employees, agents, shareholders, licensors and representatives, from and against all claims, losses, costs and expenses (including without limitation lawyers' fees) arising out of: (a) your use of, or activities in connection with, the Site, the Services or the Software; (b) any violation of these Terms of Use by you or through your account; or (c) any allegation that any Submission or User Content that you make available or create through the Site, the Services or the Software infringes or otherwise violates the copyright, trademark, trade secret, privacy or other intellectual property or other rights of any third party.

 

12. Termination

You agree that Xaviant, in its sole discretion, may terminate your access to or use of the Site and the Services, at any time and for any reason, including without limitation if Xaviant believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Use.  Upon any such termination, your right to use the Site and the Services will immediately cease.  You agree that any termination of your access to or use of the Site may be affected without prior notice, and that Xaviant may immediately de-activate or delete your account and password, and all related information and files associated with it, and/or bar any further access to such information or files.  You agree that neither Xaviant nor any of the Affiliated Entities will be liable to you or any third party for any termination of your access to the Site or to any such information or files, or will be required to make such information or files available to you after any such termination. 

 

13. Revisions to the Terms

Xaviant may at any time, and without notice, revise these Terms of Use by updating this posting.  You are bound by any such revisions and should therefore periodically visit this page to review the most current Terms of Use.  You can determine when these Terms of Use were last revised by referring to the "LAST UPDATED" legend at the top of this document.  Your failure to review these Terms of Use, which results in a change of the way or manner this Site is used, which then adversely affects you, will not be a defense that you did not have actual notice of such change.

All content and services made available through the Site that were not made available as of the "LAST UPDATED" date above shall automatically be deemed to be part of the Services when first made available through the Site.  Any software or tools made available through the Site that were not made available as of the "LAST UPDATED" date above shall automatically be deemed to be Software for purposes of this Agreement when first made available through the Site. 

When using any Services or Software on the Site, you agree that you are subject to any additional posted guidelines, rules, terms and conditions applicable to such Services or Software, which rules, terms and conditions are hereby incorporated by reference into these Terms of Use. 

 

14. Revisions to the Site

Xaviant reserves the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: modify or discontinue the Site, the Services or the Software, with or without notice; limit the Site’s availability to any person, geographic area or jurisdiction it choose; charge fees in connection with the use of the Site; modify and/or waive any fees charged in connection with the Site; and/or offer opportunities to some or all users of the Site.  You agree that neither Xaviant nor any of the Affiliated Entities shall be liable to you or to any third party for any modification, suspension or discontinuance of the Site, in whole or in part, or of any Service, Software, content, Submission, feature or product offered through the Site.  Your continued use of the Site after such changes will indicate your acceptance of such changes.

 

15. Choice of Law, Jurisdiction and Venue

These Terms of Use and your use of the Site are governed by the laws of the State of Georgia, USA, without regard to its choice of law provisions or regard to your country or state of residency.  The courts of general jurisdiction located within Forsyth County, Georgia, USA, will have exclusive subject matter and personal jurisdiction over any and all disputes arising out of, relating to or concerning these Terms of Use and/or the Site or in which these Terms of Use and/or the Site are a material fact, and you waive any jurisdictional, venue or inconvenient forum objections to such courts.

 

16. Severability 

If any provision of these Terms of Use is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from these Terms of Use such that it will not affect the validity and enforceability of any and all remaining provisions herein.

 

17. Filtering

Pursuant to 47 U.S.C. Section 230(d) as amended, Xaviant hereby notifies you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors.  Information identifying current providers of such protections is available at the following web site:http://www.onguardonline.gov/articles/0029-parental-controls.

 

18. Claims of Copyright Infringement

The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. Copyright Law.  If you believe in good faith that materials available on the Site infringe your copyright, you (or your agent) may send Xaviant a notice requesting that Xaviant remove the material or block access to it.  If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send Xaviant a counter-notice.  Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details.  Notices and counter-notices should be sent to: 

H. William Larson, Esq.
LARSON & LARSON, P.A.
11199 69th Street North
Largo, Florida 33773
US 
E-mail: bill@larsonpatentlaw.com

Details are available at http://www.copyright.gov/onlinesp/.

We suggest that you consult your legal advisor before filing a notice or counter-notice.  Please be aware that there are penalties for false claims under the DMCA.

 

19. Void Where Prohibited.

Although this Site may be accessible worldwide, not all services discussed or referenced in this Site are available to all persons or in all geographic locations or jurisdictions.  Xaviant expressly reserves the right to limit the availability of this Site and/or the provision of any service to any person, geographic area or jurisdiction that it so desires, at any time, and in its sole and exclusive discretion.

© 2012-2014 Xaviant, LLC.