Updated: January 4, 2021
IMPORTANT NOTICE: THESE TERMS OF USE CONTAIN A BINDING ARBITRATION PROVISION AND WAIVER OF JURY TRIALS AND CLASS ACTIONS GOVERNING DISPUTES ARISING FROM USE OF THE XMG SITES AND SERVICES. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW. PLEASE READ CAREFULLY.
These Terms of Use (“Terms”) govern access to and use of this website (located at www.xmodgear.com) and any other websites and mobile applications operated by X-MOD Gear, LLC d/b/a XMG (“XMG,” “we,” or “us”) now or in the future (collectively, the “Site”), and various XMG products, information, and services (the “Services”) by Site visitors (“Site Visitors”) and individuals who create an account (“Account”) on or purchase products from the Site (“Customers”). By using the Site or any XMG Services, you as a Site Visitor, accept these Terms (whether on behalf of yourself or a legal entity you represent). Customers and Site Visitors may be referred to in these Terms as “you” and “your” as applicable.
BY ACCESSING, USING, DOWNLOADING, OR UPLOADING ANY INFORMATION FROM OR TO THE SITE, OR USING THE SERVICES, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED AND MUST CEASE USING THE SITE AND SERVICES IMMEDIATELY.
1. Acceptance of Terms.
Please check these Terms periodically for changes. If you do not agree to the Terms, please do not use the Site. By using the Site, you acknowledge that you have read, understood and agree to these Terms. Your continued use of this Site following the posting of any changes to the Terms constitutes acceptance of those changes.
2. Credentials & Passwords.
You agree that at all times you shall keep confidential, maintain and control all user names and passwords used to permit or limit your access to the Site, and that you are exclusively responsible for all activities that occur in connection with such user names and passwords. You agree to immediately notify XMG of any disclosure to, or use of, any such user names or passwords by any other individual. XMG will not be liable for any loss or damage of any kind, under any legal theory, caused by your failure to comply with the foregoing obligations.
3. Privacy Notice.
Any information, including personal information (e.g., your name, address, telephone number, email address), that you transmit to the Site will be used by us in accordance with our Privacy Notice.
4. Terms and Conditions for Online Sales.
Product purchases and commercial transactions on or through the Site are governed by our Terms and Conditions for Online Sales, and may be further subject to additional terms and conditions and/or the terms and conditions imposed by the third-party facilitating the transaction. You can find our policies regarding pricing, shipping, returns, and refunds by reading those Terms and Conditions for Online Sales.
5. Eligibility; Use of the Site.
5.1. Eligibility to Use the Site. By using the Site, you represent and warrant that you are 18 years of age or older and competent to agree to these Terms. The Site is not available for use by anyone under the age of 18. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
5.2. Limited License. Upon your acceptance of these Terms, we grant you a limited, non-exclusive and non-transferable license to access and use the Site for your non-commercial personal use, or your internal business purposes (where applicable) and only as expressly permitted in these Terms. You shall not use or permit use of the Site for any illegal purpose or in any manner inconsistent with the provisions of these Terms. If you are or become a direct competitor of XMG, you may not access or use the XMG Services without XMG’s explicit, advance, written consent, and then only for the purposes authorized in writing. Without limiting the foregoing, you may not: (1) interfere with others’ use of the Site; (2) impair the Site’s operation or interfere with or disrupt the servers or networks on which it operates; (3) interfere with XMG’s exercise of its intellectual property rights; (4) frame or otherwise co-brand the Site or any content on the Site; (5) deep-link to any portion of the Site; or (6) use the Site for any illegal purpose. We reserve the right in our sole discretion to terminate or restrict your use of the Site, without notice, for any or no reason, and without liability to you or any third party. In such event, we may inform your Internet service provider of your activities and take appropriate legal action.
6. XMG Content.
You acknowledge and agree that the Site contains certain information, such as text, graphics, images, videos, links, and other materials (collectively, “XMG Content”) that is protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. You agree that as between you and XMG, XMG is the owner of XMG Content. You may not reproduce, distribute, republish or retransmit any XMG Content or materials posted at the Site without our express written consent. Except as expressly authorized by XMG herein, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from such materials or XMG Content. Notwithstanding the above, you may print or download one copy of the XMG Content or materials on the Site on any single computer for your non-commercial use, provided you keep intact all copyright and other proprietary notices. Systematic retrieval of data or other XMG Content from the Site to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from XMG is prohibited.
7. Third Party Sites/Information.
The Site may provide links to, or information gathered from, other sites on the Internet. XMG makes no representations whatsoever about these sites or this information. Other sites linked to the Site may contain information or material that some people may find inappropriate or offensive. The provision of links to, or information gathered from, other sites on the Internet should not imply XMG’s endorsement of any such sites or any association between XMG and these other sites’ operators. These sites are not under the control of XMG, and you acknowledge that XMG, its affiliates, and its licensors are not responsible for the accuracy, legality, decency, copyright compliance, or any other content of, or gathered from, such sites. You also acknowledge that XMG, its subsidiaries, its affiliates, and its licensors shall 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 the content, goods or services available on or through any sites linked to the Site, or your transmission of information, including personal data, to third-parties through such other sites.
8. Posting Guidelines.
XMG may host message boards, chats, and other public or community forums on or through the Site and XMG’s social media accounts. You agree not to post or promote any statements, content, or materials that: (a) are defamatory, abusive, profane, threatening, offensive, inflammatory, or illegal; (b) constitute junk mail, spam or unauthorized advertising, such as links to commercial products or services, contests, or any political campaigning; (c) are protected by copyright, trademark or other proprietary right without the permission of the copyright, trademark, or proprietary right owner; (d) are likely to deceive any person or impersonate any person, or misrepresent your identity or affiliation with any person or organization, including XMG; or (e) promote any illegal activity, or advocate, promote, or assist any unlawful act. When you post content on the Site or provide information to XMG, such as reviews, community posts, or survey feedback, it belongs to you; however, you grant permission to XMG to use that content in connection with our Site. Accordingly, you grant XMG a non-exclusive, irrevocable, royalty-free, freely transferable, sublicensable, worldwide right and license to use, host, store, cache, reproduce, publish, display, perform, distribute, transmit, modify, adapt, commercialize, create derivative works of, and otherwise exploit such content in connection with our Site and Services. You represent and warrant that you have all the necessary rights to grant XMG the foregoing license for all content you submit in connection with the Site and will indemnify us for any breach of this representation and warranty.
9. XMG Disclaimer of Warranties.
THE SITE, AND ALL CONTENT INCLUDED IN OR AVAILABLE THROUGH THE SITE, INCLUDING, WITHOUT LIMITATION, MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE. THE SITE IS PROVIDED WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. XMG, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS COMPLETE, ACCURATE, RELIABLE OR CORRECT; THAT THE SITES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CONTENT ON THE SITE OR FROM OTHER USERS WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IN ADDITION, ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SITES IS DONE AT YOUR OWN DIRECTION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU.
10. Limitation of Liability.
Under no circumstances shall XMG, its affiliates, or its licensors be liable for any consequential damages (including, without limitation, indirect, punitive, incidental or special damages, damages for loss of profits, goodwill, use, data or other intangible losses (even if XMG has been advised of the possibility of such damages) including, without limitation, any that result from: (i) the use of, or inability to use, the Site; (ii) your reliance on advice, information, or other content on the Site; (iii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or transactions entered into through or from the Site; (iv) unauthorized access to or alteration of your transmissions or data; (v) statements or conduct of any third party on the Site; or (vi) any other material relating to the Site. XMG, its affiliates and its licensors shall only be liable to the extent of actual damages incurred by you, not to exceed the purchase price received by XMG for the service giving rise to the liability. This limitation applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if XMG has been advised of the possibility of such damage. By purchasing products from this Site, you accept all liability for the legality of purchasing these products in your state or jurisdiction; XMG makes no claims as to the legality of these products in any area. Because some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages XMG’s liability in such jurisdictions shall be limited to the extent permitted by law.
11. Indemnity.
You agree to defend, indemnify and hold XMG and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including attorneys’ fees, made by any third party that arise from (a) your access to and use of the Site; (b) your violation of these Terms; or (c) infringement of any intellectual property or other right of any person or entity by you. XMG reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with XMG in asserting any available defenses.
12. International Use.
XMG makes no representation that the Site is appropriate or available for use in locations outside the United States, and accessing them from territories where the content or products on the Site are illegal is prohibited. If you access the Site from locations outside of the United States, you do so on your own initiative and you are responsible for compliance with local laws. You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
13. Copyright Policy.
XMG respects the intellectual property rights of others and expects visitors to its Site to do the same. XMG will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your content has been copied in a way that constitutes copyright infringement, please provide contact details to XMG using the information below and provide the following: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
XMG reserves the right to remove content alleged to be infringing without prior notice and at its sole discretion. XMG may also terminate a repeat infringer’s Account. XMG’s designated copyright agent for notice of alleged copyright infringement appearing on the Site can be reached via the Contact information below.
14. Mandatory Arbitration, Waiver of Class Actions.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
14.1. Scope. This Section 14 is intended to be interpreted broadly and governs any and all disputes between XMG and its Site Visitors and/or Customers, including but not limited to, claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; claims that arose before these Terms; and claims that may arise after the termination of these Terms (“Claims”). The only disputes excluded from this broad prohibition are the litigation of certain intellectual property disputes as provided below.
14.2. Pre-Arbitration Procedure. We hope that we can resolve any disputes with you without resorting to arbitration. If you have an issue or a complaint, you agree to contact us via the Contact information below, before taking formal action in accordance with paragraph 14.3. In your contact, please provide a brief, written description of the dispute and your contact information (including your user name, if your dispute relates to an Account). XMG agrees to use reasonable efforts to address your issue or complaint.
14.3. Binding Arbitration. If, after engaging in good faith negotiations, we cannot reach an agreed-upon solution with you within sixty (60) days, then either party may initiate binding arbitration as the sole means to resolve Claims (except as provided below) subject to these Terms set forth below. You agree that any and all Claims shall be resolved by binding arbitration in accordance with the Consumer Arbitration Rules, as applicable, of the American Arbitration Association (“AAA”), or its successor. Information about AAA, including its rules and procedures, can be found at www.adr.org. If AAA, or its successor, is unable to arbitrate a particular Claim, then that Claim shall be resolved by binding arbitration pursuant to the rules and procedures of an equivalent organization as mutually agreed by the parties. The arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this agreement to arbitrate and the Terms, including but not limited to, any claim that all or any part of this agreement or the Terms is unenforceable. All fees charged by AAA, or its successor, shall be paid in accordance with the fee schedule under the Consumer Arbitration Rules, as applicable. All fees charged by any other equivalent organization as mutually agreed by the parties shall be paid in accordance with the rules and procedures of the equivalent organization. Arbitration awards may be enforced in any court of competent jurisdiction. The provisions of this paragraph shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and shall survive settlement. EXCEPT AS MAY BE PROVIDED IN AAA’S CONSUMER DUE PROCESS PROTOCOL THAT ALLOWS CONSUMERS TO FILE CERTAIN CLAIMS IN SMALL CLAIMS COURT, YOU AGREE THAT YOU ARE GIVING UP YOUR RIGHT TO A TRIAL IN COURT, EITHER WITH OR WITHOUT A JURY.
14.4. Class Action Waiver. You and XMG expressly waive the right to file a class action or seek relief on a class basis. YOU AND XMG AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
14.5. Intellectual Property Exclusion. Not withstanding the parties’ decision to resolve all disputes through arbitration, XMG may bring enforcement actions, validity determinations, requests for emergent relief, including temporary restraining orders or preliminary injunctions, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in any state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights in the Site.
This Mandatory Arbitration, Waiver of Class Actions section shall survive any termination of your use of the Site.
15. Modifications to Site.
XMG reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Site or some or all of the content or services offered through the Site, with or without notice. You agree that XMG shall not be liable to your or to any third party for any modification, suspension or discontinuance of the Site or some or all of the services offered through it.
16. Severability and Integration.
These Terms, along with XMG’s Privacy Notice and Terms and Conditions for Online Sales, constitutes the entire agreement between you and XMG with respect to the Site and supersedes all prior or contemporaneous communications and proposals, whether oral, written, or electronic, between you and XMG with respect to the Site. If any part of these Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
17. Contact Information.
If have any questions or should you need any additional information about issues relating to the Site, please contact us using the information below:
By mail to:
XMG
c/o Corporation Service Company
2595 Interstate Drive, Suite 103
Harrisburg, PA 17110
By email: CustomerSvc@XMODgear.com
By phone: 1.833.GO.4.XMOD