TERMS OF SERVICE
Last Updated: Oct 2020
WELCOME TO XPLORPAL!
XplorPal, Inc. (“XplorPal,” “we,” “us,” “our”) offers its services (described below) to you (travelers) through its website located at www.xplorpal.com (the “Site”) and through its mobile applications and related services (collectively, such services, including any new features and applications, and the Site, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
ACCESS AND USE OF THE SERVICE
The Service is an online platform that connects locals who have unique knowledge of and experience with a particular travel destination or activity (“Pals”) with travelers seeking to receive services related to such destinations and activities (“Travelers”). Pals (“Guides”) provide experiences to travelers. Through the Services, Pals may create and post profiles (“Profiles”) that provide information about the Pal’s knowledge and experience, and may make themselves available to offer certain services to Travelers at a particular destination (each such service, an “Experience”). Travelers may select Pals (or may request that XplorPal attempt to connect them to a Provider) to provide the Traveler with an Experience.
PLATFORM NATURE OF THE SERVICES:
XplorPal makes available a platform for Travelers and Pals to meet online and arrange for Experiences. XplorPal is not an operator of tours, activities or Experiences, nor is it a provider of tours or activities, and XplorPal does not own, sell, resell, furnish, provide, manage and/or control any transportation or tour services. XplorPal’s responsibilities are limited to: (i) facilitating the availability of the Services; and (ii) serving as the limited agent of each Pal for the purpose of accepting payments from Travelers on behalf of the Pal.
YOU UNDERSTAND AND AGREE THAT XPLORPAL IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN PALS AND TRAVELERS, NOR IS XPLORPAL AN AGENT OR INSURER. THE SERVICES ARE INTENDED TO BE USED TO FACILITATE THE CONNECTIONS BETWEEN PALS AND TRAVELERS. XPLORPAL CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY PROFILES AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY EXPERIENCES. XPLORPAL HAS NO CONTROL OVER THE CONDUCT OF PALS, TRAVELERS AND OTHER USERS OF THE SERVICES OR ANY EXPERIENCES, AND DISCLAIMS ALL LIABILITY IN THIS REGARD. ACCORDINGLY, THE PLANNING OR PARTAKING OF ANY EXPERIENCES ARE AT THE PAL’S AND/OR TRAVELER’S OWN RISK.
YOUR REGISTRATION OBLIGATIONS:
MEMBER ACCOUNT, PASSWORD AND SECURITY:
You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify XplorPal of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. XplorPal will not be liable for any loss or damage arising from your failure to comply with this Section.
MODIFICATIONS TO SERVICE:
XplorPal reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that XplorPal will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
GENERAL PRACTICES REGARDING USE AND STORAGE:
You acknowledge that XplorPal may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on XplorPal’s servers on your behalf. You agree that XplorPal has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that XplorPal reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that XplorPal reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
The Service may include certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding XplorPal and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your XplorPal account information to ensure that your messages are not sent to the person that acquires your old number.
As a Pal, you may create Profiles that showcase your experience, activities you can lead, and the type of Experiences you can provide Travelers with. Profiles will be made publicly available via the Services, and other Members (travelers) may contact you based upon the information provided in your Profile. You acknowledge and agree that you are responsible for your Profiles and your own acts and omissions and are also responsible for the acts and omissions of any individuals who are present during the Experience at your request or invitation, excluding the Traveler (and the individuals the Traveler invites to the Experience, if applicable). You agree to comply with the XplorPal Provider Guidelines available at "www.community.XplorPal.com"
You understand and agree that XplorPal does not act as an insurer or as a contracting agent for you as a Provider. If a Traveler requests your expertise for a Experience and participates in your Experience, any agreement you enter into with such Traveler is between you and the Traveler and XplorPal is not a party thereto. Notwithstanding the foregoing, XplorPal serves as your limited authorized agent for the purpose of accepting payments from Travelers on your behalf, and is responsible for transmitting such payments to you, subject to these Terms of Service.
You are responsible for all other bookings, including without limitation on-the-ground arrangements, tours or experiences you host, restaurants and similar bookings.
You represent and warrant that your Profile and your planning of and/or guidance on any Experience:
will not breach any agreements you have entered into with any third parties (such as any agreements with or rules of employers or local tourism agencies)
will (a) be in compliance with all applicable laws, tax requirements, and rules and regulations that may apply to any such Experience, including, but not limited to, tourism, tour guide licensing laws, and other laws governing events and tours of public spaces and other venues and (b) not conflict with the rights of third parties.
Please note that XplorPal assumes no responsibility for any Pal’s or Traveler’s compliance with any applicable laws, rules and regulations. XplorPal reserves the right, at any time and without prior notice, to remove or disable access to any Profile for any reason, including Profiles that XplorPal, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Services.
XplorPal recommends that Pals and Travelers obtain appropriate insurance for their Experiences. Please review any insurance policy that you may have for your Experience carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Travelers (and the individuals the Traveler invites to the Experience, if applicable) while participating in your Experience.
XplorPal does not endorse any Experiences. In addition, although these Terms require users to provide accurate information, we do not attempt to confirm, and do not confirm, any user’s purported identity. You are responsible for determining the identity and suitability of others who you contact via the Services. We will not be responsible for any damage or harm resulting from your interactions with other users. By using the Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other users or other third parties will be limited to a claim against the particular user or other third parties who caused you harm and you agree not to attempt to impose liability on, or seek any legal remedy from XplorPal with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other users via the Services regarding any bookings or Trips made by you. This limitation shall not apply to any claim by a Pal against XplorPal regarding (i) the remittance of payments received from a Traveler by XplorPal on behalf of a Pal or (ii) the failure of XplorPal to book a XplorPal Booking for which the Traveler provided accurate booking information, which instead shall be subject to the limitations described in the section below entitled “Limitation of Liability”.
CONDITIONS OF USE
BOOKINGS AND FINANCIAL TERMS FOR PROVIDERS:
1. GUIDES (Providers who lead activities). Except in the case of a Pre-Approved Event (as defined below), if you are a Guide and a booking is requested for your Experience via the Services, you will be required to either confirm or reject the booking within the specified timeframe (which is generally within 24-48 hours of when the booking is requested, as determined by XplorPal in its sole discretion) or the booking request will be automatically cancelled. If you are unable to confirm or decide to reject a booking of an Experience within the specified timeframe, any amounts collected by XplorPal for the requested booking will be refunded to the applicable Traveler’s credit card and any pre-authorization of such credit card will be released. You may be able to create a Listing that is pre-scheduled for a specific time and date, where the Traveler’s booking may be automatically confirmed (a “Pre-Approved Event”). When a booking is requested via the Services, we may share with you the first and last name of the Traveler who has requested the booking and a link to the Traveler’s XplorPal Account profile page.
The fees displayed in each Listing are comprised of the Experience Fees (defined below) and the Traveler Fees (defined below). Where applicable, Taxes may be charged in addition to the Experience Fees and Traveler Fees. The Experience Fees, the Traveler Fees and applicable Taxes are collectively referred to in these Terms as the “Total Fees”. The amounts due and payable by a Traveler solely relating to a Guide’s Experience are the “Experience Fees”. Please note that it is the Guide and not XplorPal which determines the Experience Fees. XplorPal charges a fee to Travelers of four percent (4%) of applicable Experience Fees which are the “Credit Card Fees”. The Traveler Fees are added to the Experience Fees to calculate the Total Fees (which may also include applicable Taxes) displayed in the applicable Listing. XplorPal will collect the Total Fees at the time of booking confirmation (i.e. when the Guide confirms the booking within the specified timeframe) and will initiate payment of the Experience Fees (less XplorPal’s Guide Fees (defined below)) to the Guide within 48 hours of when the Traveler arrives at the applicable Experience (except to the extent that a refund is due to the Traveler). However, please note that we will not be responsible for delays in remitting Experience Fees, which can vary based on the bank, payment provider, currency, location, etc. Be aware that in some instances it may take up to 30-60 days to receive funds as a result of bank and third-party payment provider process and regulations.
CANCELLATIONS AND REFUNDS:
1. GUIDES (Providers who lead activities). These terms and conditions govern the XplorPal Traveler Refund Policy (the “Traveler Refund Policy”) available to Travelers who book and pay for an Experience listed by a Pal through the XplorPal platform (the “Site”) and suffer a Travel Issue and the obligations of the Pal associated with the Traveler Refund Policy.
A “Travel Issue” means any one of the following:
The Pal offering the Experience (i) cancels a reservation within 24 hours before the scheduled start of the reservation, (ii) fails to arrive for the Experience within 20 minutes of the scheduled start time, or (iii) fails to provide the Traveler with the reasonable ability to access the Experience (e.g., by allowing the Traveler access to the space in which the Experience will happen or begin if applicable).
The description of the Experience in the listing on the Site is materially inaccurate with respect to (i) the duration of the Experience, (ii) the content of the Experience (including but not limited to the stated activities or sites, as applicable), or (iii) the physical location of the Experience.
During the Traveler’s Experience, conditions do not meet safety or health hazards that would be reasonably expected, given the nature of the particular Experience, in XplorPal’s judgment.
THE TRAVELER REFUND POLICY.
If you are a Traveler and suffer a Travel Issue, we agree, at our discretion, to either (i) reimburse you up to the amount paid by you through the Site, as determined by XplorPal in our discretion, depending on the nature of the Travel Issue suffered or (ii) use our reasonable efforts to find and book you another Experience which in our determination is reasonably comparable to the Experience described in your original reservation in terms of content and quality. For clarity, in the event the alternative Experience is of a higher price than the former, you may be responsible for any difference in price. In the event the alternative Experience is of a lower price, you may be entitled to a partial refund for the difference. All determinations of XplorPal with respect to the Traveler Refund Policy, including without limitation the size of any refund, shall be final and binding on the Travelers and Pals.
CONDITIONS TO CLAIM A TRAVEL ISSUE.
Only a Traveler may submit a claim for a Travel Issue. If you are a Traveler, in order to submit a valid claim for a Travel Issue and receive the benefits with respect to your reservation, you are required to meet each of the following conditions:
You must report the Travel Issue to XplorPal in writing (at support@XplorPal.com) or via telephone and provide us with information (including evidence) about the Experience and the circumstances of the Travel Issue within 24 hours after the start of your reservation, and must respond to any requests by us for additional information or cooperation on the Travel Issue;
You must not have directly or indirectly caused the Travel Issue (through your action, omission or negligence); and
You must have used reasonable efforts to try to remedy the circumstances of the Travel Issue with the Pal prior to making a claim for a Travel Issue (and you must provide evidence of having done so).
MINIMUM QUALITY STANDARDS, GUIDE RESPONSIBILITIES AND REIMBURSEMENT TO TRAVELER.
If you are a Pal, you are responsible for ensuring that the Experiences you list on the Site meet minimum quality standards regarding adequacy of the description on the Site, safety, health, and do not present a Traveler with Travel Issues. Throughout the Experience, Pals should be available in order to try, in good faith, to resolve Traveler issues.
If you are a Pal, and if (i) XplorPal determines that a Traveler has suffered a Travel Issue related to an Experience listed by you and (ii) XplorPal either reimburses that Traveler any amount up to the amount paid by the Traveler through the Site for the Experience or provides an alternative Experience to the Traveler, you agree to reimburse XplorPal up to the amount paid by XplorPal within 30 days of XplorPal’s request. All determinations of XplorPal with respect to the Traveler Refund Policy, including without limitation the size of any refund to the Traveler, shall be final and binding on the Travelers and Pals. You also agree that in order for you to reimburse XplorPal up to the amount paid by XplorPal, XplorPal may off-set or reduce any amounts owed by XplorPal to you by this amount. If the Traveler is rescheduled to an alternative Experience, you may lose part or all of the Experience Fee payment for the booking and you may be responsible for reasonable additional costs incurred to reschedule the Traveler to the alternative Experience.
The rights of the Travelers under the Traveler Refund Policy supersede the cancellation policy that otherwise applies to a particular Experience. If you dispute the Travel Issue you may notify us in writing (support@XplorPal.com) or via telephone and provide us with information (including evidence) disputing the claims regarding the Travel Issue, provided you must have used reasonable and good faith efforts to try to remedy the Travel Issue with the Traveler prior to disputing the Travel Issue claim (and you must provide evidence of having done so). You agree that all determinations of XplorPal with respect to the Travel Issue shall be final and binding on the Travelers and Pals regardless of your submission of a dispute against such Travel Issue. In the event of one or more Travel Issues, XplorPal, in its discretion, may elect to take additional actions. These actions include, but are not limited to, negatively affecting your listing rating, automated reviews or notifications indicating Travel Issues, canceling future bookings, suspending or removing the listing of the Experience or imposing penalties or fees for the administrative burden associated with the Travel Issues.
(a) No Assignment/No Insurance. This Traveler Refund Policy is not intended to constitute an offer to insure, does not constitute insurance or an insurance contract, does not take the place of insurance obtained or obtainable by the Traveler, and the Traveler has not paid any premium in respect of the Traveler Refund Policy. The benefits provided under this Traveler Refund Policy are not assignable or transferable by you. (b) Modification or Termination. XplorPal reserves the right to modify or terminate this Traveler Refund Policy, at any time, in its sole discretion, and without prior notice. (c) If XplorPal modifies this Traveler Refund Policy, we will post the modification on the Site or provide you with notice of the modification and XplorPal will continue to process all claims for Travel Issues made prior to the effective date of the modification. (d) Entire Agreement and Definitions. This Traveler Refund Policy constitutes the entire and exclusive understanding and agreement between XplorPal and you regarding the Traveler Refund Policy and supersedes and replaces any and all prior oral or written understandings or agreements between XplorPal and you regarding the Traveler Refund Policy. Capitalized terms not otherwise defined herein shall have the meaning set forth in the XplorPal Terms of Service. Controlling Law. This Traveler Refund Policy will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to its conflict-of-law provisions. (e) Limitation of Liability. IN NO EVENT WILL XPLORPAL’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS XPLORPAL POLICY TERMS, EXCEED THE AMOUNT OF THE EXPERIENCE FEES COLLECTED BY XPLORPAL FROM THE TRAVELER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU ACKNOWLEDGE AND AGREE THAT, BY POSTING A LISTING OR BOOKING AN EXPERIENCE OR OTHERWISE USING THE SITE, SERVICES AS A GUIDE OR TRAVELER, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE POLICY TERMS.
2. INSIDERS (Providers who plan travel). Travelers are free to reject any Itinerary for any reason prior to payment. Once an Itinerary is confirmed by a Traveler, any fees paid are non-refundable except as set forth below:
XplorPal will endeavor to refund Traveler the fees paid for any experiences that have not yet been booked, minus the Service Fee. Fees for experiences that have already been booked are non-refundable.
Whenever possible XplorPal will connect Traveler to an alternate Pal who can fulfill request. If not, XplorPal will refund the Total Fees for such booking to the applicable Traveler within a commercially reasonable time of the cancellation.
CANCELLATION DUE TO OUTSIDE FACTORS.
Certain Experiences may depend on factors outside either party’s control, such as weather (“Outside Factors”). The Pal has the discretion as to whether Outside Factors will prevent the Experience from taking place. As a Pal, if you need to cancel an Experience due to Outside Factors, you must contact the Traveler and XplorPal (at support@XplorPal.com) as early as possible. Subject to the Traveler’s consent, the Provider and the Traveler may choose to reschedule the Experience for another date. If the Experience cannot be rescheduled, the Traveler should contact XplorPal so we may assist in finding a replacement Experience. For clarity, in the event the alternative Experience is of a higher price than the former, you may be responsible for any difference in price. In the event the alternative Experience is of a lower price, you may be entitled to a partial refund for the difference. As a Traveler, if you have contacted XplorPal as provided above and XplorPal is unable to find you a replacement Experience, XplorPal may refund the Total Fees for such booking to the applicable Traveler within a commercially reasonable time of the cancellation.
You understand and agree that you are solely responsible for determining your applicable tax reporting requirements in consultation with your tax advisors. XplorPal cannot and does not offer tax-related advice to any users of the Services. Additionally, please note that each Pal is responsible for determining local indirect taxes and for including any applicable taxes to be collected or obligations relating to applicable taxes within their experiences.
You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by XplorPal. XplorPal reserves the right to investigate and take appropriate legal action against anyone who, in XplorPal’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
Email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of XplorPal, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose XplorPal or its users to any harm or liability of any type;
Interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
Violate any applicable local, state, national or international law, or any regulations having the force of law;
Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
Solicit personal information from anyone under the age of 18;
Harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
Advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
Further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
Obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service;
Offer, as a Pal, any Experiences that you do not yourself have permission to provide (without limiting the foregoing, you will not list Experiences as a Pal if you are serving in the capacity of an agent for a third party);
Offer, as a provider, any Experience that may not be provided pursuant to the terms and conditions of an agreement with a third party;
Contact a Pal for any purpose other than asking a question related to a booking, such Provider’s Experiences or Profiles;
Contact a Traveler for any purpose other than asking a question related to a booking or such Traveler’s use of the Services;
When acting as a Traveler or otherwise, recruit or otherwise solicit any Pal or other user of the Services to join third party services or websites that are competitive to XplorPal, without XplorPal’s prior written approval;
Use the Services to find a Pal or Traveler and then complete a booking of an Experience transaction independent of the Services, whether or not you do so in order to circumvent the obligation to pay any Service Fees related to XplorPal’s provision of the Services; or
As a Pal, submit any experience with a false or misleading price information.
SPECIAL NOTICE FOR INTERNATIONAL USE; EXPORT CONTROLS:
Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
APPLE-ENABLED SOFTWARE APPLICATIONS:
XplorPal offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
XplorPal and you acknowledge that these Terms of Service are concluded between XplorPal and you only, and not with Apple, and that as between XplorPal and Apple, XplorPal, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be XplorPal’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
XplorPal and you acknowledge that XplorPal, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between XplorPal and Apple, XplorPal, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to XplorPal as follows: support@XplorPal.com or 1-855-GO-XPLORPAL
XplorPal and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
INTELLECTUAL PROPERTY RIGHTS
SERVICE CONTENT, SOFTWARE AND TRADEMARKS:
You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by XplorPal, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith is the property of XplorPal, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by XplorPal.
The XplorPal name and logos are trademarks and service marks of XplorPal (collectively the “XplorPal Trademarks”). Other XplorPal, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to XplorPal. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of XplorPal Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of XplorPal Trademarks will inure to our exclusive benefit.
THIRD PARTY MATERIAL:
Under no circumstances will XplorPal be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that XplorPal does not have a duty to pre-screen content, but that XplorPal and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, XplorPal and its designees will have the right to remove any content that violates these Terms of Service or is deemed by XplorPal, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
USER CONTENT TRANSMITTED THROUGH THE SERVICE:
With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyright and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant XplorPal and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to XplorPal are non-confidential and XplorPal will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that XplorPal may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of XplorPal, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
THIRD PARTY WEBSITES:
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. XplorPal has no control over such sites and resources and XplorPal is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that XplorPal will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that XplorPal is not liable for any loss or claim that you may have against any such third party.
SOCIAL NETWORKING SERVICES:
In addition, XplorPal is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, XplorPal is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. XplorPal enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
INDEMNITY AND RELEASE:
You agree to release, indemnify and hold XplorPal and its affiliates and their officers, employees, directors and agent harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
DISCLAIMER OF WARRANTIES:
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. XPLORPAL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
XPLORPAL MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
LIMITATION OF LIABILITY:
YOU EXPRESSLY UNDERSTAND AND AGREE THAT XPLORPAL WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF XPLORPAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL XPLORPAL’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID XPLORPAL IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
At XplorPal’s or your election, all disputes, claims, or controversies arising out of or relating to the Terms of Service or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in San Francisco, California before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified in the Terms of Service. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Terms of Service and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Terms of Service, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
You agree that XplorPal, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if XplorPal believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. XplorPal may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that XplorPal may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that XplorPal will not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user or Pal in connection with the Service and XplorPal will have no liability or responsibility with respect thereto. XplorPal reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and XplorPal and govern your use of the Service, superseding any prior agreements between you and XplorPal with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and XplorPal agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Alameda County, California. The failure of XplorPal to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service 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 of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of XplorPal, but XplorPal may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
NOTICE FOR CALIFORNIA USERS:
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at XplorPal, Inc., 1-855-GO-XPLORPAL.
QUESTIONS? CONCERNS? SUGGESTIONS?
Please contact us at support@XplorPal.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.