Terms of Use and Agreement

Effective as of March 2011

Important - this is a legal document between you (which shall be identified herein as "you" or "user") and Xigo, LLC ("Xigo"). You should read carefully the following terms and conditions contained in this terms of use agreement (the "agreement") as they govern access to and use of Xigo's website found at www.xigo.com and its associated materials and information (together, the "website" for the purposes of this agreement). Xigo is willing to allow access to anduse of its website only on teh condition that you accept all terms and conditions contained in this agreement.

Terms and Conditions

License grant

This Agreement provides You with a limited, non-exclusive, non-transferable, and non-sublicenseable license to use the Website solely for your personal use or your internal business purposes.  Any third party software made a part of and otherwise available through the Website is subject to the terms and conditions herein and any other terms and licenses (if any) prescribed and posted by such third party vendors.   

Restrictions

The foregoing license is limited.  You therefore may not (i) use, copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, alter, license, sublicense, or commercially exploit the Website (or any part thereof) in any manner not expressly permitted by this Agreement, (ii) reverse engineer, decompile, disassemble, translate, or create any derivative work of the Website (or any part thereof); (iii) access, link to, or use any source code from the Website (or any part thereof); (iv) erase or remove any proprietary or intellectual property notice contained in or on the Website (or any part thereof); or (v) use or permit use of the Website (or any part thereof) for or by any other person or entity.  In addition, You shall not enter into any contractual relationship or other legally binding obligation with any third party or person which shall have the purpose or effect of encumbering Xigo or the use of the Website (or any part thereof).  You acknowledge and agree that exceeding the scope of the license herein shall be a material breach of this Agreement and subject to the termination provisions set forth herein.

User obligations

Subject to Xigo's right to monitor or audit compliance, You acknowledge and agree that it is solely your responsibility to maintain your compliance with the terms and conditions of this Agreement.  By accessing or using the Website, You also agree to be responsible for and to abide by all applicable local, state, national, and international laws, regulations, rules, and guidelines with respect to your use of the Website.  In addition, You agree to assume all responsibility for your use, and the results of your use, of the Website, including meeting any requirements of your contracts with third parties or other persons.  Moreover, You agree to be responsible for obtaining and paying for all licenses for third party software, hardware, and firmware necessary for accessing the Website. 

Proprietary rights

Any rights granted hereby are expressly licensed.  Xigo does not grant any implied right to You or any other person and does not transfer or assign any ownership or intellectual property interest or title in or to the Website (or any part thereof) to You or anyone else.  All text, graphics, User interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, databases, solutions, information, and documentation as well as the design, structure, selection, coordination, expression, "look and feel," and arrangement of the Website, unless otherwise indicated, are owned, controlled, and licensed by Xigo or its licensors.  Accordingly, your unauthorized use of the Website may violate intellectual property or other proprietary rights laws as well as other laws, regulations, and statutes.  The Website is Copyright © 2011 Xigo, LLC and/or its licensors.  Xigo and all other names, logos, and icons identifying Xigo and its solutions and services are proprietary trademarks of Xigo, and any use of such marks, including, without limitation, as domain names, without the express written permission of Xigo is strictly prohibited.  Other solution and company names mentioned herein or on the Website may be the trademarks and/or service marks of their respective owners. 

Links to other sites

Xigo may provide links, in its sole discretion, to other sites on the World Wide Web for your convenience in locating or accessing related information, solutions, and services.  These sites have not necessarily been reviewed by Xigo and are maintained by third parties over which Xigo exercises no control.  Accordingly, Xigo expressly disclaims any responsibility for the content, the materials, the accuracy of the information, and/or the quality of the solutions or services provided by, available through, or advertised on these third-party Websites.  Moreover, these links do not imply an endorsement with respect to any third party or any Website or the solutions or services provided by any third party.

Feedback

Xigo welcomes your feedback and suggestions about Xigo's solutions or services or with respect to how to improve the Website.  But, by transmitting any feedback or suggestions and any related information, material, or other content (collectively, “feedback”) to Xigo, You represent and warrant that such feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that You have all rights necessary to convey such feedback to Xigo.  In addition, any feedback received by Xigo will be deemed to include from You a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for Xigo to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such information, material, or content, and You hereby waive any claim to the contrary.

Representations and warranties

You represent and warrant to Xigo that (i) You are at least the legal age of majority, (ii) You are authorized to enter into this Agreement, (ii) You are authorized and able to fulfill and perform the obligations and meet the conditions of a User as specified herein, and (iii) any information or data provided to Xigo by You will not violate any law or regulation or any third party or person's right and will be true, accurate, current, and complete.

Warranty disclaimer

Xigo does not warrant, guarantee, or make any representations regarding the use, or the results of the use,of the website in terms of availability, accuracy, reliability, currentness, completeness, functionality, intended purpose, or otherwise. Xigo also does not represent or warrant that the web site will operat error-free, uninterupted, or in a manner that will meet your requirements. The entire risk as to the quality and performance of the web site is with you. the web site and its associate materials and information are provided "as is" and "as available" and Xigo hereby disclaims any and all warranties, express or implied, including, without limitation, any implied warranties of title, non-infringement, merchantability, or fitness for a particular purpose.

Limitation of liability

You acknowledge and agree that Xigo shall not be liable or responsible for any claim, damage, or loss resulting from a cause beyond Xigo's control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, or governmental restrictions.  Moreover, you agree that in no event shall Xigo be liable for any indirect, punitive, incidental, special, or consequential damages, including, without limitation, for lost profits, for lost data, arising out of or in any way connected with your use of the web site, or for any infomration or materials available through the website, whether based in contract, tort, strict liability, or otherwise, even if Xigo has been advised of the possibility of damages. Without limitation of the foregoing, total liability of Xigo for any reason whatsoever related touse of the Website, Results from use of the website or for any claims relating to this agreement shall not exceed one thousand dollars $1,000.00 (USD).

Governing law

This Agreement has been made in and will be construed and enforced solely in accordance with the laws of the Commonwealth of Virginia, U.S.A., as applied to agreements entered into and completely performed in the Commonwealth of Virginia.  The state or local courts in the Commonwealth of Virginia will have exclusive jurisdiction and venue over all controversies in connection with this Agreement, and You hereby consent to such exclusive and personal jurisdiction and venue.  Any claim You might have against Xigo must be brought within two (2) years after the cause of action arises, or such claim or cause of action is barred.  In addition, You agree to waive any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement and that each party has the right to seek attorneys' fees in any proceeding.  You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other documents and records originally generated and maintained in printed form.  Please contact Xigo if You wish to receive a printed copy of this Agreement.

Enforcement

Xigo wishes to maintain the Website as a helpful resource for all of its Users.  As it relates to Xigo, You therefore have no reasonable expectation of privacy while using the Website because Xigo reserves the right to view, monitor, and/or record activity on the Website (in accordance with applicable law) and to comply with government or court appointed authorities when necessary.  Actual or attempted unauthorized use of the Website may also result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law.  You shall therefore not, nor shall You permit any third party to, disable, circumvent, or otherwise avoid any security device, mechanism, protocol, or procedure established by Xigo for use of or with the Website.  Moreover, You also acknowledge that any breach, threatened or actual, of this Agreement by You may cause irreparable injury to Xigo and/or its licensors, such injury would not be quantifiable in monetary damages, and Xigo and/or its licensors would not have an adequate remedy at law.  You therefore agree that Xigo and/or its licensors (or on their behalf) shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this Agreement.  Accordingly, You hereby waive any requirement that Xigo or its licensors post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to Xigo to enforce any provision of this Agreement. 

Termination

Xigo also reserves the right at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraud, illegal activity, or actions or omissions that violate any term or condition of this Agreement, to terminate this Agreement with You in order to protect its name, business, or goodwill and/or any other User.  You acknowledge and agree that Xigo shall have the sole right to determine in its reasonable discretion whether You are engaging in any unauthorized activity and/or violating any term or conditions of this Agreement.  Termination or expiration of this Agreement will be effective without notice.  Xigo shall also not be responsible or liable for any damages or loss, such as loss of sales or profits, as a result of any termination of this Agreement in accordance with this section.  You may also terminate at any time by ceasing to use the Website and providing Xigo with notice of such termination.  But, all applicable provisions of this Agreement will survive termination, as outlined below.  In particular, any applicable fees or charges that were due to Xigo prior to termination or expiration shall remain and shall become immediately payable to Xigo upon termination.  Upon termination or expiration, You must also return to Xigo and/or destroy or delete from your computer, laptop, work station, network, or Website all copies of (or parts of) the Website (and any associated materials) in your possession.  If requested by Xigo, You shall provide written confirmation of your compliance with this obligation.  Any licenses from Xigo and any right to use the Website shall immediately cease upon termination of this Agreement.  The provisions concerning feedback, Xigo's ownership rights, representations and warranties, warranty disclaimer, limitation of liability, governing law, enforcement, termination, other terms and conditions, and the miscellaneous terms will survive the termination or expiration of this Agreement for any reason. 

Other terms and conditions

Additional notices, terms, and conditions, including, without limitation, Xigo's Privacy Policy, terms and conditions governing the use of software or tools or Xigo's other Websites, or the requirement to pay certain fees or charges for particular solutions, programs, or services (as made known by Xigo), may apply to the use of the Website.  You agree to abide by such other notices, terms, and conditions (as applicable).  If there is a conflict with this Agreement, Xigo's obligations, if any, with respect to its services, solutions, programs, and/or software are governed solely by the terms, conditions, notices, and agreements pursuant to which they are provided, and nothing should be construed to alter such terms, conditions, notices, and agreements.

Miscellaneous

The relationship between You and Xigo is and shall be that of independent contractors and nothing in this Agreement shall be construed or used to create or imply any relationship of partners, joint venturers, or employer and employee.  You may not assign or otherwise transfer this Agreement or the license granted hereunder or delegate any of your duties specified herein, in whole or in part, without Xigo's prior written consent.  Any attempt of assignment, delegation, or transfer in violation of this Agreement shall be void, of no effect, and a material breach of this Agreement.  Notwithstanding the foregoing, Xigo may assign this Agreement in whole or in part.  Moreover, Xigo may delegate its rights and responsibilities or use contractors or agents to fulfill its obligations under this Agreement.  Failure by Xigo to insist on strict performance of any of the terms and conditions of this Agreement will not operate as a waiver of that or any subsequent default or failure of performance.  In the event any provision of this Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, You agree that unless it materially affects the entire intent and purpose of this Agreement, the invalidity, voidness, or unenforceability shall affect neither the validity of this Agreement nor the remaining provisions herein, and the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision.  Headings are for convenience only and have no legal or contractual effect.  This Agreement and Xigo's Privacy Policy, which is hereby incorporated by reference as if set forth fully herein, represent the entire agreement between You and Xigo with respect to subject matter herein, and they supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written between You and Xigo with respect to the Website.  Please note that Xigo reserves the right to change the terms and conditions of this Agreement and by which the Website is extended to You by providing You in writing or electronically a copy of such revised terms (or notice thereof).  Xigo also has the exclusive right to provide updates, upgrades, and/or changes to any aspect of the Website at any time.  Your continued use of the Website following any such change to such Website will be deemed acceptance of any change to this Agreement or the Website.