Terms & Conditions

Date of Last Revision: 2022-11-21 18:22:58 UTC

These Terms and Conditions govern the use of the websites and mobile applications ("Site(s)") of xpolly, Inc. ("xpolly", "we", "us", "our") and our affiliates.

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. THESE TERMS AND CONDITIONS CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND XPOLLY THAT CONDITIONS YOUR USE OF THE SITES. BY USING, ACCESSING, OR DOWNLOADING A SITE, YOU SIGNIFY YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS AND ACKNOWLEDGE YOU HAVE REVIEWED THE TERMS OF XPOLLY’S PRIVACY POLICY

IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS OR THE TERMS OF OUR PRIVACY POLICY, YOU SHOULD NOT ACCESS OR USE THE SITES.

Privacy Policy; Entire Agreement

Your privacy is important to us. We encourage you to read our Privacy Policy to understand our privacy practices, so that you may make an informed decision about using the Site. By using the Site, you consent to all actions taken by us with respect to your information in compliance with our privacy policy. These Terms and Conditions, together with the Privacy Policy and all other terms, conditions and policies incorporated herein by reference, together with any legal notices or other terms or conditions published on the Site, shall constitute the entire agreement between you and us concerning the Site.

Changes to Terms and Conditions

xpolly may modify a Site and the rules and regulations governing its use, at any time. Modifications may be posted on the Site, and any such changes or modifications will be effective immediately upon posting of the revisions on the Site. By continuing use of the Site after such changes are made you will be accepting such changes. If you do not agree to any changes or modifications to these Terms and Conditions, your sole recourse is to stop using the Site.

1. Scope of Use: xpolly will allow you to view and use the Site with an individual device for your informational, non-commercial use. Except as otherwise provided herein, no part of any content or software on the Site may be copied, downloaded or stored in a retrieval system for any other purpose, nor may it be redistributed for any purpose, without the express written permission of xpolly. You understand that xpolly may discontinue, change, or restrict your use of the Site for any reason without notice.

2. No Warranties: ALL CONTENT ON THE SITE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT. XPOLLY MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, CURRENCY, OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH THE SITE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE AND THE CONTENT AVAILABLE ON THE SITE IS AT YOUR SOLE RISK. XPOLLY MAKES NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ARE RESPONSIBLE FOR TAKING ALL NECESSARY PRECAUTIONS TO ENSURE THAT ANY CONTENT YOU MAY OBTAIN FROM THE SITE IS FREE OF VIRUSES.

THE ABOVE EXCLUSIONS MAY NOT APPLY IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES.

3. Limitation of Liability; Release: YOUR USE OF THE SITE OR ANY CONTENT ON THE SITE IS AT YOUR OWN RISK. XPOLLY, FOR OURSELVES AND OUR AFFILIATES, SPONSORS, LICENSORS, OR OUR OR THEIR RESPECTIVE DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS SPECIFICALLY DISCLAIMS ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, EVEN IF XPOLLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO RELIANCE BY ANY PARTY ON ANY CONTENT

OBTAINED THROUGH THE USE OF THE SITE, OR THAT ARISES IN CONNECTION WITH MISTAKES OR OMISSIONS IN, OR DELAYS IN TRANSMISSION OF, INFORMATION TO OR FROM THE USER, INTERRUPTIONS IN TELECOMMUNICATIONS CONNECTIONS TO THE SITE OR VIRUSES, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, THEFT OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO THE SITE, OR RELATED INFORMATION OR PROGRAMS.

YOU HEREBY AGREE TO RELEASE, REMISE AND FOREVER DISCHARGE THE SITE, XPOLLY, AND OUR SPONSORS, LICENSORS, DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND SUPPLIERS, AND ITS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND ALL OTHER RELATED PERSONS OR ENTITIES, FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, SUITS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO, OR ARE CONNECTED WITH YOUR USE OF THE SITES OR ANY CONTENTS HEREUNDER.

IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY” (OR ANY EQUIVALENT STATUTORY PROVISION WITH A SIMILAR IMPORT OR INTENT). IF YOU ARE A RESIDENT OF A STATE OTHER THAN CALIFORNIA, YOU EXPLICITLY WAIVE THE TERMS AND PROTECTIONS OF ANY STATUTE OF YOUR OWN STATE THAT HAS A SIMILAR IMPORT OR INTENT.

4. Indemnification: You agree to indemnify, defend and hold us, our affiliates, sponsors, and our and their respective independent contractors, service providers, consultants, directors, officers, employees and agents, and applicable third parties (such as licensors, partners and advertisers) (collectively, the “Indemnified Parties”) harmless from and against any actual or threatened suit, demand or claims, damages, costs, liabilities and expenses (including, but not limited to, damage awards, settlement amounts, and reasonable attorneys’ fees) brought against any Indemnified Parties, arising out of or relating to: (a) your use of the Site, the contents hereunder, the User Content (as defined below) or any other information (including Feedback) available on the Site; (b) your conduct; (c) your failure to perform your obligations under these Terms and Conditions (including, but not limited to, your violation of these Terms and Conditions); and/or (d) your violation of the rights of any third party.

5. Trademarks: The trademarks, logos, and service marks (collectively, the “trademarks”) displayed on the Sites are registered and unregistered trademarks of xpolly and others. Nothing contained in the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right in and to the trademarks. Unauthorized use of any trademark may be a violation of federal and state trademark laws.

6. Copyright: This Site is protected by United States’ and foreign copyright laws. Except for your informational, personal, non-commercial use as authorized above, you may not modify, reproduce or distribute the design or layout of the Site, or individual sections of the design or layout of the Site or xpolly logos, without xpolly’s written permission.

7. Links to Third Party Sites: This xpolly Site may contain links to websites operated by other parties. The linked sites are not under the control of xpolly, and xpolly is not responsible for the content available on any other Internet sites linked to this Site. Such links do not imply xpolly’s endorsement of material on any other site. When you leave the Site, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from this Site. Without limiting the generality of the foregoing, we shall not be responsible for and have no control over any privacy or security practices of any third-party site’s collection, storage, use or disclosure of your information.

8. No Deep Linking: You agree that you are only authorized to visit and view pages of this Site for your own personal use, and that you shall not duplicate, download, publish, modify or otherwise distribute the material on this Site except for your personal use, unless otherwise specifically authorized by us in writing to do so. You also agree not to deep-link to the Site for any purpose, unless specifically authorized by us in writing to do so. The content and software on this Site is our property or that of our sponsors, suppliers, or licensors and is protected by U.S. and international copyright laws. We post a legal notice and various credits on pages of the Site, which may not be removed. Please do not remove this notice or these credits, or any additional information contained along with the notices and credits.

9. User Submissions: Certain areas of this Site may enable you to access online forums and to submit e-mails, or otherwise provide feedback to xpolly. We provide the Site solely as a service provider, as such term is defined by various laws, including the Digital Millennium Copyright Act of 1998 (“DMCA”) and Section 230 of the Communications Decency Act (“CDA”). As such, although we prohibit certain activities in these Terms and Conditions, we do not control and take no responsibility or liability for any content posted, stored or uploaded by you or any third party (“User Content”), or for any loss or damage thereto, nor are we liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity or profanity you may encounter by use of the Site. Your use of the Site is at your own risk. As a provider of interactive services, we are not liable for any statements, representations or content provided by our users in any public gallery, forum, personal home page or other interactive area. We have no obligation to screen, edit or monitor any User Content posted on the Site. We also do not endorse, support, represent, approve, sponsor, or guarantee the completeness, truthfulness, accuracy, or reliability of any User Content or Feedback (as defined below). In addition, xpolly reserves the right, but not the obligation, to monitor, delete, move or edit content, in whole or in part, submitted to the forums that it, in its sole discretion, deems abusive, defamatory, obscene, in violation of intellectual property, privacy, or other proprietary rights, in violation of these terms and conditions, or for any other reason.

By submitting content, you hereby grant to xpolly the irrevocable right to use, copy, modify, publish, perform, transmit and display such content via any media in accordance with xpolly’s Privacy Policy, and waive any moral rights you may have in such content. Subject to xpolly’s Privacy Policy, xpolly shall be free to use such content, including any ideas, concepts, know-how, or techniques contained in such content, or that you otherwise provide by email or any other medium (“Feedback”), for any reason whatsoever.

10. Feedback: All Feedback will, to the maximum extent permissible under applicable laws, automatically become our sole property, and you hereby assign to us, exclusively and throughout the world, all rights, title, and interests in such Feedback, all intellectual property rights embodied therein, and otherwise, you hereby grant us a perpetual, irrevocable, worldwide, fully-paid up, royalty free, assignable, sublicensable license to use, reproduce, display, create derivative works of, make, sell, have made, have sold, import, export or otherwise exploit any such Feedback. You are not entitled to any acknowledgment, compensation or reimbursement in connection with such Feedback or grant of rights to same. By providing such Feedback, you acknowledge and agree that: (a) your Feedback does not contain confidential or proprietary information; (b) we are not under any obligation of confidentiality, express or implied, with respect to the Feedback; (c) we will be entitled to use or disclose (or choose not to use or disclose) any Feedback for any purpose, in any way, in any media worldwide; and (d) we may have something similar to the Feedback already under consideration or in development.

11. Prohibited Submissions and Acceptable Use: The Site is available for access and use by you solely for lawful purposes. Any action by you or associated with your account that we believe, in our sole and absolute discretion: (a) violates these Terms and Conditions; (b) violates any applicable law, statute, court order, regulation or ordinance (including, without limitation, those governing export control, consumer protection, unfair or deceptive practices, and false advertising); (c) restricts, inhibits, disrupts, interferes with, limits, or prevents access or use by anyone of the Sites; or (d) through the use of the Site, abuses, defames, harasses, libels, disparages or threatens another user of the Site or any other third party, is strictly forbidden. You also may NOT:

  • take any action that attempts to impersonate, deceive, or defraud any person or entity;

  • harvest, otherwise collect, store, post or share personal information about users or any other third parties, including e-mail addresses, postal addresses, and phone numbers, or otherwise attempt to gain unauthorized access to any network, system, or personal information of anyone;

  • use any robot, spider, crawler, scraper, bots or other automated means to access or use the Site;

  • introduce or attempt to introduce software viruses, Trojan horses, worms, backdoors or any other malicious files or computer codes, or take any action that imposes or may impose an unreasonable or disproportionately large load on our technical infrastructure;

  • post, upload to, store, create or otherwise publish through any Site any:

    • content that is unlawful, libelous, defamatory, obscene, harassing, threatening, abusive, inflammatory, fraudulent or otherwise objectionable or harmful;

    • unsolicited promotions, political campaigning, advertising or solicitations, spam, junk mail, chain letters, mass or bulk email, or pyramid schemes;

    • marketing or promotional materials;

    • purported or actual financial or other professional advice;

    • content that may infringe or violate any patent, trademark, trade secret, copyright or other intellectual or other proprietary right of ours or of any third party. By posting any content, you represent and warrant that you have the lawful right to use, display, distribute, and reproduce such content; or

    • content that you know or reasonably suspect is false, misleading, untruthful, deceptive, or inaccurate.

12. Copyright Complaints: We respect the intellectual property rights of others. If you are a copyright owner or an agent thereof and believe that any Feedback or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to locate the material;

  • Information reasonably sufficient to contact you, such as an address, telephone number, and, if available, an electronic mail address;

  • A statement that you have a good faith belief that use of the material in the manner complained of 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 you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

You may file a notification of such infringement with our Designated Agent as set forth below:

xpolly, Inc.

80 State St., Albany, New York 12207 legal@xpolly.com

We may give notice of a claim of copyright infringement to our users by means of a general notice on the Site, electronic mail to a user’s email address in our records, or by written communication sent by first-class mail to a user’s address in our records.

For clarity, only DMCA notices should go to our Designated Agent named above. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.

Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use your User Content, you may send a counter-notice containing the following information to our Designated Agent:

  • Your physical or electronic signature;

  • Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;

  • A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and

  • Your name, address, telephone number, e-mail address, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by our Designated Agent, we may send a copy of the counter-notice to the original complaining party. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

13. Security: Certain sections of the Sites may prompt you for login information for access, which may include a user name or other registration identifier, and a password (“Login Credentials”). You are responsible for maintaining the confidentiality of your Login Credentials, and you are responsible for all uses of your Login Credentials, and any and all related charges incurred, if any, whether or not authorized by you.

14. Mobile and Internet Usage

By using the Sites from your mobile phone, you understand that your wireless or internet services provider’s standard SMS, MMS and/or data rates will apply to your use of the Sites. By using the Sites, you agree to be responsible for any fees that are incurred as a result of your use of the Sites. You hereby represent and warrant that you are the owner or authorized user of any mobile or other wireless device that you use to access the Site, and that you are authorized to approve all associated SMS, MMS and data charges.

15. Location & Governing Law: You agree that the laws of the state of New York, without reference to its choice of law rules, will govern these Terms and Conditions and any dispute of any sort that might arise between you and xpolly relating to the Sites. xpolly makes no representation that the information in the Site is appropriate or available for use in other locations, and access to the xpolly Site from territories where the content of the xpolly Site may be illegal is prohibited. Those who choose to access the xpolly Site from other locations do so on their own initiative and are responsible for compliance with applicable local laws.

16. Violations and Additional Policies: xpolly reserves the right to seek all remedies available at law and in equity for violations of the rules and regulations set forth in this Site, including the right to block access from a particular Internet address to the Site.

17. Termination: Notwithstanding any of these Terms and Conditions, we reserve the right, without notice and in our sole discretion, to terminate your license to use the Site, and to block or prevent future access to and use of the Site.

18. Communications between xpolly and You: When you visit the Site or send emails to us, you communicate with us electronically and consent to receive communications from us electronically. We may communicate with you by: (a) email to your email address indicated in your communications with us, (b) posting general notices on the Site, or (c) posting messages that are displayed to you when you log in to or access the Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

19. Notices; Contacts: All notices, demands and other communications hereunder shall be in writing and shall be effective upon receipt, provided that we may provide notice to you by posting announcements on the Site or sending an e-mail to you at the e-mail address that is currently associated with your account if you have one, or as otherwise provided under Section 18 (Communications between xpolly and You) above. Any such e-mail notice to you will be deemed given on the day it is sent. Except as specified in the next sentence, all notices to us of a legal nature shall be in writing and shall be sent by certified first-class U.S. mail, return receipt requested, to:

Attention: xpolly Legal

80 State St., Albany, New York 12207

All notices regarding copyright or other intellectual property infringement issues shall be sent in accordance with our intellectual property policy described above under the heading “Copyright Complaints.” If you have any questions about these Terms, then please contact us at legal@xpolly.com or at the address set forth above.

20. Assignment: You will not assign any of your rights and obligations under these Terms and Conditions without our prior written consent. We reserve the right to assign or transfer our rights and obligations under these Terms and Conditions.

21. Void Where Prohibited: xpolly reserves the right to restrict the sale or use of our products or services to any person, geographic region or jurisdiction or otherwise. Any offer made on the Site is void where prohibited.

22. Severability: If any provision of these Terms and Conditions is found to be void or unenforceable, then the remainder will have full force and effect, and the invalid provision will be partially enforced to the maximum extent permitted by law to effectuate the purpose of these Terms and Conditions.