Xembly Terms of Use Agreement

Please Read This Terms Of Use Agreement (The “Terms Of Use“) Carefully As It Is A Binding Agreement Between You And Xembly, Inc. (“Xembly) Concerning Your Access To And Use Of The Xembly Browser Extension, Including Features And Any Functionality Available Through Such Extension And/Or Any Updates To Such Extension (Together, The “Extension“), As Well As Any Other Website, Media Form, Media Channel, Mobile Website Or Mobile Application Related, Linked, Or Otherwise Connected Thereto (Each A “Service” And Collectively, The “Services“).

BY CLICKING ON THE “I ACCEPT” BUTTON AND/OR ACCESSING, INSTALLING OR USING THE EXTENSION OR THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH XEMBLY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE EXTENSION OR THE SERVICES.

PLEASE BE AWARE THAT SECTION 16 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

PLEASE BE AWARE THAT SECTION 2.4 (COMPANY COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms“) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement“.

PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY XEMBLY IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Xembly will make a new copy of the Terms of Use Agreement available at https://www.xembly.com/terms (the “Website“) and within the Extension via the Google Chrome Web Store and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website and within the Extension via the Google Chrome Web Store. We will also update the “Last Updated” date at the top of the Terms of Use Agreement. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Extension and/or the Services. Otherwise, your continued use of the Extension and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE OR THE GOOGLE CHROME WEB STORE TO VIEW THE THEN-CURRENT TERMS.

USE OF THE SERVICES AND COMPANY PROPERTIES

The Extension, the Services, and the information and content available therein (each, a “Company Property” and collectively, the “Company Properties”) are protected by copyright laws throughout the world. Unless otherwise specified by Xembly in a separate license, your right to use any and all Company Properties is subject to the Agreement.

1. Extension License. Subject to your compliance with the Agreement, Xembly grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Extension on a mobile device or computer that you own or control and to run such copy of the Extension solely for your own personal or internal business purposes.
2. Updates. You understand that Company Properties are evolving. As a result, Xembly may require you to accept updates to Company Properties that you have installed on your computer or mobile device. You acknowledge and agree that Xembly may update Company Properties with or without notifying you. You may need to update third-party software from time to time in order to use Company Properties.
3. Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Company Properties or any portion of Company Properties; (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Company Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not access Company Properties in order to build a similar or competitive application, product or service; (d) except as expressly stated herein, no part of Company Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (e) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Company Properties. Any future release, update or other addition to Company Properties shall be subject to the terms of this Agreement. Xembly, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Company Property terminates the licenses granted by Xembly pursuant to the Agreement.

ACCOUNT

1. Connected Account. In order to access certain features of Company Properties you will be required to connect to a third-party account (e.g. Google) (“Connected Account“) as is permitted under the applicable terms and conditions that govern your use of your Connected Account. You hereby authorize Xembly to receive and/or access any and all information from your Connected Account necessary for Xembly to provide the functionality of the Extension and Services. You represent that you are entitled to grant Xembly access to your Connected Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the Connected Account. By granting Xembly access to your Connected Account, you understand that Xembly may access, make available and store (if applicable) personal data such as your first and last name, username and email address, and profile photo as well as any calendar data, including, without limitation, calendar meeting title(s), invitee(s), invitee email address(es), stated location of meeting(s) and any other content in a calendar invite (collectively, “Content“) that you have provided to and stored in your Connected Account (“Connected Content“) so that it is available on and through Company Properties via your Connected Account. Subject to the privacy settings that you have set in such Connected Account, personally identifiable information that you post to your Connected Accounts may be available on and through the Company Properties. While you are not required to provide access to every portion of your Connected Account, FULL ACCESS TO YOUR CALENDAR IS REQUIRED FOR THE EXTENSION TO FUNCTION PROPERLY. Please note that if a Connected Account or associated service becomes unavailable, or Xembly’s access to such Connected Account is terminated by the third-party service provider, then Connected Content will no longer be available on and through Company Properties, and the functionality of the Extension and Services may cease. You have the ability to disable the connection between the Extension and your Connected Account at any time by logging out of your connected account, removing the Extension from your browser, or removing the Extension from your approved third-party access list from within your Connected Account Settings. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR CONNECTED ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND XEMBLY DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH CONNECTED ACCOUNTS. Xembly makes no effort to review any Connected Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Xembly is not responsible for any Connected Content.
2. Representations. You represent that you are (i) at least thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Company Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur during your use of the Extension. You agree that you shall monitor the use of the Extension on your device to restrict use by minors, and you will accept full responsibility for any unauthorized use of Company Properties by minors.
3. Company Communications. By entering into this Agreement or using the Company Properties, you agree to receive communications from us via e-mail. Communications from us will be limited to operational communications concerning your use of the Company Properties.

‍RESPONSIBILITY FOR CONTENT

1. Types of Content. You acknowledge that all Content, including Company Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Xembly, are entirely responsible for all Content that you transmit or otherwise make available (“Make Available“) through Company Properties (“Your Content“), and that you and other users of Company Properties (“Extension Users“), and not Xembly, are similarly responsible for all Content that you and they Make Available through Company Properties (“User Content“).
2. Storage. Unless expressly agreed to by Xembly in writing elsewhere, Xembly has no obligation to store any of Your Content that you Make Available on Company Properties. Xembly has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Company Properties.

OWNERSHIP

1. Company Properties. Except with respect to Your Content [and User Content], you agree that Xembly and its suppliers own all rights, title and interest in Company Properties (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Xembly software. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Company Properties.
2. Feedback. You agree that submission of any questions, ideas, suggestions, documents, and/or proposals to Xembly through its contact email, suggestion, feedback, or similar pages (“Feedback“) is at your own risk and that Xembly has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Xembly a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Company Properties and/or Xembly’s business.

USER CONDUCT

As a condition of use, you agree not to use Company Properties for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) take any action that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Xembly’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Xembly; (vi) interferes with or attempt to interfere with the proper functioning of Company Properties or uses Company Properties in any way not expressly permitted by this Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Company Properties, including but not limited to violating or attempting to violate any security features of Company Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Company Properties, introducing viruses, worms, or similar harmful code into Company Properties, or interfering or attempting to interfere with use of Company Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Company Properties.

INTERACTIONS WITH OTHER USERS

1. User Responsibility. You are solely responsible for your interactions with other Extension Users and any other parties with whom you interact. Without limiting the foregoing, Xembly is not responsible for any reviews/ratings or other feedback that you receive from other users. Xembly reserves the right, but has no obligation, to intercede in such disputes. You agree that Xembly will not be responsible for any liability incurred as the result of such interactions.
2. Content Provided by Other Users. Company Properties may contain User Content provided by other Extension Users. Xembly is not responsible for and does not control User Content. Xembly has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Extension Users at your own risk.

INDEMNIFICATION

You agree to indemnify and hold Xembly, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Company Party” and collectively, the “Company Parties“) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Company Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Xembly reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Xembly in asserting any available defenses. This provision does not require you to indemnify any of the Company Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Company Properties.

DISCLAIMER OF WARRANTIES AND CONDITIONS.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE EXTENSION OR SERVICE.COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH COMPANY PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS COMPANY PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. XEMBLY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

LIMITATION OF LIABILITY.

1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT XEMBLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF COMPANY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE COMPANY PROPERTIES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH COMPANY PROPERTIES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON COMPANY PROPERTIES; OR (e) ANY OTHER MATTER RELATED TO COMPANY PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
2. Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, COMPANY PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) $100; OR (b) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
3. User Content. EXCEPT FOR XEMBLY’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE XEMBLY’S PRIVACY POLICY, XEMBLY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
4. Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
5. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN XEMBLY AND YOU.

TERM AND TERMINATION.

1. Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Company Properties, unless terminated earlier in accordance with the Agreement.
2. Termination of Services by Xembly. We may change, suspend, or discontinue the availability or any functionality of the Extension, or any aspect of your access to the Extension, at any time without notice to you and without incurring any liability to you. We may also impose limits on certain features and services or restrict your access to part or all of the Extension without notice to you and without incurring any liability to you. Furthermore, Xembly may limit, suspend, or terminate your use of the Extension (and your rights under this Agreement) at any time. This Agreement will terminate automatically and without notice immediately upon any breach of the terms of this Agreement by you.
3. Termination of Services by You. You may terminate this Agreement for any reason or no reason at all, at your convenience, by ceasing your use of the Extension.
4. Effect of Termination. Upon termination of this Agreement, all rights and licenses granted will terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Xembly will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

INTERNATIONAL USERS

Company Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Xembly intends to announce such Services or Content in your country. Company Properties are controlled and offered by Xembly from its facilities in the United States of America. Xembly makes no representations that Company Properties are appropriate or available for use in other locations. Those who access or use Company Properties from other countries do so at their own volition and are responsible for compliance with local law.

DISPUTE RESOLUTION

Please read the following arbitration agreement in this section (“ARBITRATION AGREEMENT”) carefully. It requires you to arbitrate disputes with Xembly and limits the manner in which you can seek relief from us.

1. Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Company Properties, to any products sold or distributed through the Company Properties, or to any aspect of your relationship with Xembly, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or Xembly may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent 3415 Cascadia Avenue South, Seattle, WA 98144. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Xembly will pay them for you. In addition, Xembly will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
3. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Xembly. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
4. Waiver of Jury Trial. YOU AND XEMBLY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Xembly are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12.1 (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
5. Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of Washington. All other disputes, claims, or requests for relief shall be arbitrated.
6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: legal@xembly.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Connected Account, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
7. Severability. Except as provided in Section 12.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Xembly.
9. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Xembly makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Xembly at the following address: 3415 Cascadia Avenue South, Seattle, WA 98144.

GENERAL PROVISIONS

1. Electronic Communications. The communications between you and Xembly may take place via electronic means, whether you visit Company Properties or send Xembly e-mails, or whether Xembly posts notices on Company Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Xembly in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Xembly provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign“).
2. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Xembly’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
3. Force Majeure. Xembly shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
4. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Company Properties, please contact us at: legal@xembly.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
5. Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF WASHINGTON, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
6. Notice. Where Xembly requires that you provide an e-mail address, you are responsible for providing Xembly with your most current e-mail address. In the event that the last e-mail address you provided to Xembly is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Xembly’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Xembly at the following address: 3415 Cascadia Avenue South, Seattle, WA 98144. Such notice shall be deemed given when received by Xembly by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
7. Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
8. Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
9. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
10. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.