PRIVACY POLICY
Last modified: April 1, 2018
Introduction
XchangePlus LLC, a Delaware limited liability company ("Company" or "We") respect your privacy and are committed to protecting it through our compliance with this policy.
This policy describes the types of information we may collect from you or that you may provide when you visit the website www.xchangeplus.com (our "Website") and our practices for collecting, using, maintaining, protecting, and disclosing that information.
This policy applies to information we collect:
It does not apply to information collected by:
Please read this policy carefully to understand our policies and practices regarding your information and how we will treat it. If you do not agree with our policies and practices, your choice is not to use our Website. By accessing or using this Website, you agree to this privacy policy. This policy may change from time to time (see Changes to Our Privacy Policy). Your continued use of this Website after we make changes is deemed to be acceptance of those changes, so please check the policy periodically for updates.
Children Under the Age of 13
Our Website is not intended for children under 13 years of age. No one under age 13 may provide any personal information to or on the Website. We do not knowingly collect personal information from children under 13. If you are under 13, do not use or provide any information on this Website or on or through any of its features/register on the Website, make any purchases through the Website, use any of the interactive or public comment features of this Website or provide any information about yourself to us, including your name, address, telephone number, email address, or any screen name or user name you may use. If we learn we have collected or received personal information from a child under 13 without verification of parental consent, we will delete that information. If you believe we might have any information from or about a child under 13, please contact us at notices@xchangeplus.com.
Information We Collect About You and How We Collect It
We collect several types of information from and about users of our Website, including information:
We collect this information:
Information You Provide to Us.
The information we collect on or through our Website may include:
You also may provide information to be published or displayed (hereinafter, "posted") on public areas of the Website, or transmitted to other users of the Website or third parties (collectively, "User Contributions"). Your User Contributions are posted on and transmitted to others at your own risk. Although we limit access to certain pages, please be aware that no security measures are perfect or impenetrable. Additionally, we cannot control the actions of other users of the Website with whom you may choose to share your User Contributions. Therefore, we cannot and do not guarantee that your User Contributions will not be viewed by unauthorized persons.
Information We Collect Through Automatic Data Collection Technologies.
As you navigate through and interact with our Website, we may use automatic data collection technologies to collect certain information about your equipment, browsing actions, and patterns, including:
The information we collect automatically is statistical data about the real estate transactions you are involved, but we may maintain it or associate it with personal information we collect in other ways or receive from third parties. It helps us to improve our Website and to deliver a better and more personalized service, including by enabling us to:
The technologies we use for this automatic data collection may include:
We do not collect personal information automatically, but we may tie this information to personal information about you that we collect from other sources or you provide to us.
How We Use Your Information
We use information that we collect about you or that you provide to us, including any personal information:
We may also use your information to contact you about our own and third-parties' goods and services that may be of interest to you. If you do not want us to use your information in this way, please adjust your user preferences in your account profile.
We may use the information we have collected from you to enable us to display advertisements to our advertisers' target audiences. Even though we do not disclose your personal information for these purposes without your consent, if you click on or otherwise interact with an advertisement, the advertiser may assume that you meet its target criteria.
Disclosure of Your Information
We may disclose aggregated information about our users without restriction.
We may disclose personal information that we collect or you provide as described in this privacy policy:
We may also disclose your personal information:
Choices About How We Use and Disclose Your Information
We strive to provide you with choices regarding the personal information you provide to us. We have created mechanisms to provide you with the following control over your information:
We do not control third parties' collection or use of your information to serve interest-based advertising. However these third parties may provide you with ways to choose not to have your information collected or used in this way. You can opt out of receiving targeted ads from members of the Network Advertising Initiative ("NAI") on the NAI's website.
Changes to Our Privacy Policy
It is our policy to post any changes we make to our privacy policy on this page. If we make material changes to how we treat our users' personal information, we will notify you by email to the primary email address specified in your account and through a notice on the Website home page. The date the privacy policy was last revised is identified at the top of the page. You are responsible for ensuring we have an up-to-date active and deliverable email address for you, and for periodically visiting our Website and this privacy policy to check for any changes.
Contact Information
To ask questions or comment about this privacy policy and our privacy practices, contact us at:
notices@xchangeplus.com.
and/or
XchangePlus LLC
1000 North Halsted Avenue
Suite 202B
Chicago, Illinois 60642
TERMS OF USE
XchangePlus LLC, a Delaware limited liability company (referred to as “us” or “we”) provides the www.xchangeplus.com site and various related services (together referred to as this “site”) subject to your compliance with all the terms, conditions, and notices contained or referenced herein (the “Terms of Use”), as well as any other written agreement between us (or your company). In addition, when using particular services or materials on this site, users shall be subject to any posted guidelines or rules applicable to such services or materials that may contain terms and conditions in addition to those in these Terms of Use. All such guidelines or rules are hereby incorporated by reference into these Terms of Use.
BY COMPLETING THE REGISTRATION PROCESS AND/OR USING THIS SITE, YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT WISH TO BE BOUND BY THE THESE TERMS OF USE, PLEASE EXIT THE SITE NOW. YOUR REMEDY FOR DISSATISFACTION WITH THIS SITE, OR ANY PRODUCTS, SERVICES, CONTENT, OR OTHER INFORMATION AVAILABLE ON OR THROUGH THIS SITE, IS TO STOP USING THE SITE AND/OR THOSE PARTICULAR PRODUCTS OR SERVICES. YOUR AGREEMENT WITH US REGARDING COMPLIANCE WITH THESE TERMS OF USE BECOMES EFFECTIVE IMMEDIATELY UPON COMMENCEMENT OF YOUR USE OF THIS SITE.
ADDITIONALLY, BY COMPLETING THE REGISTRATION PROCESS AND/OR USING THIS SITE, YOU AGREE not to upload/store any debit or credit card information, bank account information, social security number, driver’s license information, or government ID information within the Web Site. XCHANGEPLUS WILL NOT HAVE ANY OBLIGATION TO MAINTAIN THE CONFIDENTIALITY OR SECURITY OF SUCH INFORMATION.
These Terms of Use are effective as of April 1, 2018. We reserve the right to change these Terms of Use from time to time without notice to you. You acknowledge and agree that it is your responsibility to review this site and these Terms of Use periodically and to be aware of any modifications. Your continued use of this site after such modifications will constitute your acknowledgement of the modified Terms of Use and agreement to abide and be bound by the modified Terms of Use.
As used in these Terms of Use, references to our “Affiliates” include our owners, subsidiaries, affiliated companies, officers, directors, suppliers, partners, sponsors, and advertisers, and includes (without limitation) all parties involved in creating, producing, and/or delivering this site and/or its contents.
We make various services available on this site including, but not limited to, creation transaction-specific tasks, entering deadlines and submittal/storage of associated information, data, text, files, pictures, documents and other real estate transaction materials and sharing it with other transaction participants and third parties. Fees for the various services are set out in the membership and service fees described elsewhere in this site. You are solely responsible for providing, at your own expense, all equipment necessary to use the services, including a computer and modem; and your own Internet access (including payment of telephone service fees associated with such access).
We reserve the sole right to either modify or discontinue the site, including any features therein, at any time with or without notice to you. We shall not be liable to you or any third party should we exercise such right. Modifications may include, but are not limited to, changes in the pricing structure, the addition of fee-based services, or changes to limitations on allowable file sizes. Any new features that augment or enhance the then-current services on this site shall also be subject to these Terms of Use.
You understand and agree that You may not upload/store any debit or credit card information, bank account information, social security number, driver’s license information, or government ID information or any other information that may be considered as private. XCHANGEPLUS WILL NOT HAVE ANY OBLIGATION TO MAINTAIN THE CONFIDENTIALITY OR SECURITY OF SUCH INFORMATION.
You understand and agree that temporary interruptions of the services available through this site may occur as normal events. You further understand and agree that we have has no control over third party networks you may access in the course of the use of this site, and therefore, delays and disruption of other network transmissions are completely beyond our control.
You understand and agree that the services available on this site are provided “AS IS” and that we assume no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings.
In order to access some of the services on this site, you will require a separate account and password that can be obtained by completing our online registration form, which requests certain information and data (“Registration Data”) and maintaining and updating your Registration Data as required. By registering, you agree that all information provided in the Registration Data is true and accurate and that you will maintain and update this information as required in order to keep it current, complete and accurate.
You also grant us the right to disclose to third parties certain Registration Data about you. The information we obtain through your use of this site, including your Registration Data, is subject to our Privacy Policy, which is specifically incorporated by reference into these Terms of Use.
If you subscribe to a service on this site that requires payment of a fee, you agree to pay all fees associated with such service. For all charges for services on this site, we will bill your credit card or bank account. Recurring charges are billed in advance of service. You agree to provide us with accurate and complete billing information, including valid credit card information, your name, address and telephone number, and to provide us with any changes in such information within 5 calendar days of the change.
If, for any reason, your credit card company or bank refuses to pay the amount billed for the service, you agreement that we may, at our option, suspend or terminate your subscription to the service and require you to pay the overdue amount by other means acceptable to us. We may charge a fee for reinstatement of suspended or terminated accounts.
You agree that until your subscription to the service is terminated, you will continue to accrue charges for which you remain responsible, even if you do not use the service.
In the event legal action is necessary to collect on balances due, you agree to reimburse us for all expenses incurred to recover sums due, including attorney fees and other legal expenses.
Your use of the site is subject to all applicable laws and regulations, and you are solely responsible for the contents of your communications through the site. By posting information in or otherwise using any communications service, chat room, message board, newsgroup, software library, or other interactive service that may be available to you on or through this site, you agree that you will not upload, share, post, or otherwise distribute or facilitate distribution of any content — including text, communications, software, images, sounds, data, or other information — that:
We neither endorse nor assume any liability for the contents of any material uploaded or submitted by third party users of the site. We do not pre-screen, monitor, or edit the content posted by users of communications services, message boards, software libraries, or other interactive services that may be available on or through this site. However, we and our agents have the right at their sole discretion to remove any content that, in our judgment, does not comply with these Terms of Use and any other rules of user conduct for our site, or is otherwise harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing such content. You hereby consent to such removal and waive any claim against us arising out of such removal of content. See “Use of Your Materials” below for a description of the procedures to be followed in the event that any party believes that content posted on this site infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party.
In addition, you may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Not all areas of the site may be available to you or other authorized users of the site. You shall not interfere with anyone else's use and enjoyment of the site or other similar services. Users who violate systems or network security may incur criminal or civil liability.
You agree that we may at any time, and at our sole discretion, terminate your membership without prior notice to you for violating any of the above provisions. In addition, you acknowledge that we will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations.
This site may link you to other sites on the Internet or otherwise include references to information, documents, software, materials and/or services provided by other parties. These sites may contain information or material that some people may find inappropriate or offensive. These other sites and parties are not under our control, and you acknowledge that we are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites, nor are we responsible for errors or omissions in any references to other parties or their products and services.
The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, or association with, the site or party by us, or any warranty of any kind, either express or implied.
Copyright © 2018 XchangePlus LLC All Rights Reserved.
For purposes of these Terms of Use, “content” is defined as any information, communications, software, photos, video, graphics, music, sounds, and other material and services that can be viewed by users on our site. This includes, but is in no way limited to, message boards, chat, and other original content.
By accepting these Terms of Use, you acknowledge and agree that all content presented to you on this site is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws, and is the sole property of XchangePlus LLC and/or its Affiliates. You are only permitted to use the content as expressly authorized by us or the specific content provider. Except for a single copy made for personal use only, you may not copy, reproduce, modify, republish, upload, post, transmit, or distribute any documents or information from this site in any form or by any means without prior written permission from us or the specific content provider, and you are solely responsible for obtaining permission before reusing any copyrighted material that is available on this site. Any unauthorized use of the materials appearing on this site may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.
Neither we or our Affiliates warrant or represent that your use of materials displayed on, or obtained through, this site will not infringe the rights of third parties. See “Use of Your Materials” below for a description of the procedures to be followed in the event that any party believes that content posted on this site infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party.
Nothing in these Terms of Use grants you any right to use any trademark, service mark, logo, and/or the name of XchangePlus LLC or its Affiliates.
Subject to our Privacy Policy, any communication or material that you transmit to this site or to us, whether by electronic mail or other means, for any reason, will be treated as nonconfidential and nonproprietary. While you retain all rights in such communications or material, you grant us and our designated licensees a nonexclusive, paid-up, perpetual, and worldwide right to copy, distribute, display, perform, publish, translate, adapt, modify, and otherwise use such material for any purpose regardless of the form or medium (now known or not currently known) in which it is used.
Please do not submit confidential or proprietary information to us unless we have mutually agreed in writing otherwise. We are also unable to accept your unsolicited ideas or proposals, so please do not submit them to us in any circumstance. We respect the intellectual property of others, and we ask you to do the same. If you or any user of this site believes its copyright, trademark or other property rights have been infringed by a posting on this site, you or the user should send notification to our Designated Agent (as identified below) immediately. To be effective, the notification must include:
Designated Agent for Claimed Infringement:
General Counsel: Demchenko Kashuba LLC
Two Northfield Plaza, Suite 310
Northfield, Illinois 60618
Tel: 773.360.8805
nk@kashubalaw.net
Your acknowledge and agree that upon receipt of a notice of a claim of copyright infringement, we may immediately remove the identified materials from our site without liability to you or any other party and that the claims of the complaining party and the party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the Digital Millennium Copyright Act.
ALL MATERIALS AND SERVICES ON THIS SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT: (A) THE SERVICES AND MATERIALS WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES AND MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR MATERIALS WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM THE SITE FROM US OR OUR AFFILIATES WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.
THIS SITE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. WE MAY MAKE CHANGES TO THE MATERIALS AND SERVICES AT THIS SITE, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY PRODUCTS LISTED HEREIN, AT ANY TIME WITHOUT NOTICE. THE MATERIALS OR SERVICES AT THIS SITE MAY BE OUT OF DATE, AND WE MAKE NO COMMITMENT TO UPDATE SUCH MATERIALS OR SERVICES.
THE USE OF THE SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THIS SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
Through your use of the site, you may have the opportunities to engage in commercial transactions with other users and vendors. You acknowledge that all transactions relating to any services offered by any party, including, but not limited to the purchase terms, payment terms, warranties, guarantees, maintenance and delivery terms relating to such transactions, are agreed to solely between the seller or purchaser of such merchandise and services and you. WE MAKE NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH, OR IN CONNECTION WITH THIS SITE, AND YOU UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT YOUR OWN RISK. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THIS SITE FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US OR ANY OTHER OF OUR AFFILIATES.
Before purchasing products and services on or through this site, review our Sales Terms and Conditions, which are incorporated by reference into these Terms of Use.
Content available through this site often represents the opinions and judgments of an information provider, site user, or other person or entity not connected with XchangePlus LLC. We do not endorse, nor are we responsible for the accuracy or reliability of, any opinion, advice, or statement made by anyone other than an authorized XchangePlus LLC spokesperson speaking in his/her official capacity. Please refer to the specific editorial policies posted on various sections of this site for further information, which policies are incorporated by reference into these Terms of Use.
In addition, the materials on this site may include sample or form agreements, letters or other documents, including financially or legally significant documents such as contracts and other items (“Forms”). These Forms are provided solely as examples of typical documents of their kind, and the delivery and use of Forms does not constitute legal, accounting or other professional advice. Under no circumstances will XchangePlus LLC or its Affiliates be liable for any loss or damages caused by your reliance on information or advice obtained through this site, including your use of any of the Forms. It is your responsibility to evaluate the accuracy, completeness, or usefulness of any information, opinions, advice, Forms or other content available on or through this site. In particular, you are urged to consult an appropriate professional licensed in your jurisdiction before using any Forms or otherwise relying on any legal, accounting, or other professional advice or information obtained on or through this site.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Your exclusive remedy and our entire liability, if any, for any claims arising out of these Terms of Use and your use of this site shall be limited to the amount you paid us for the services on the site during the 6-month period before the act giving rise to the liability.
IN NO EVENT SHALL WE OR OUR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS SITE OR OF ANY WEB SITE REFERENCED OR LINKED TO FROM THIS SITE.
FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THRID PARTY SERVICES OFFERED THROUGH THIS SITE OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS THROUGH THIS SITE, INCLUDING WITHOUT LIMITATION THE PROCESSING OF ORDERS.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Upon a request by us, you agree to defend, indemnify, and hold us and our Affiliates harmless from all liabilities, claims, and expenses, including attorney's fees, that arise from your use or misuse of this site. We reserve the right, at our 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 us in asserting any available defenses.
From time to time, this site may include advertisements offered by third parties. You may enter into correspondence with or participate in promotions of the advertisers showing their products on this site. Any such correspondence or promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or promotions, are solely between you and the advertiser. We assume no liability, obligation or responsibility for any part of any such correspondence or promotion.
We may make e-mail and messenger services available to users of our site, either directly or through a third-party provider. We will not inspect or disclose the contents of private e-mail messages except with the consent of the sender or the recipient, or in the narrowly-defined situations provided under the Electronic Communications Privacy Act, or as other required by law or by court or governmental order. Further information is available in our Privacy Policy.
We may employ automated monitoring devices or techniques to protect our users from mass unsolicited mailings (also known as “spam”) and/or other types of electronic communications that we deem inconsistent with our business purposes. However, such devices or techniques are not perfect, and we will not be responsible for any legitimate communication that is blocked, or for any unsolicited communication that is not blocked.
Mailboxes may have a limited storage capacity. If you exceed the maximum permitted storage space, we may employ automated devices that delete or block e-mail messages that exceed the limit. We will not be responsible for such deleted or blocked messages.
You acknowledge that we may establish general practices and limits concerning use of the services available on our site, including without limitation the maximum number of days that uploaded content will be retained on the site, the maximum disk space that will be allotted or our servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the services in a given period of time. You agree that we have no responsibility or liability for the deletion or failure to store any content maintained or transmitted on or through this site.
You acknowledge that we reserve the right to log off accounts which have not paid a subscription fee that are inactive for an extended period of time. You further acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
We provide storage space and access for material through our site. For purposes of these Terms of Use, “material” refers to all forms of communication that we may allow, including narrative descriptions, graphics (including photographs, illustrations, images, drawings, logos), executable programs, video recordings, and audio recordings. You may not use this site to publish material that we determine, at our sole discretion, to be unlawful, indecent, or objectionable, or which violates the restrictions described in “Your Conduct on the Site” above. We will not routinely monitor the contents of your online portfolio. You are solely responsible for any information contained in your online portfolios. However, if complaints are received regarding language, content, or graphics contained in your online portfolio, we may, at our sole discretion, remove the images hosted on our servers and terminate your Web hosting service. We may also suspend the account, restrict access to it, or remove content from it if necessary or appropriate.
The accounts of our users operate on shared resources. Excessive use or abuse of these shared network resources by one user may have a negative impact on all other users. Misuse of network resources in a manner that impairs network performance, including excessive consumption of CPU time, memory, disk space, and session time, is prohibited and may result in termination of your account or limitation of your activities.
This site is not designed or intended to be used as a disaster recovery facility or as an emergency data storage facility. Although we take reasonable precautions to preserve and protect the material you upload to the site, you should not rely on the site as your only storage facility. You should preserve backup copies of any digital data, information or other materials that you have uploaded. You agree not to hold us for any damage to, any deletion of or any failure to store your files, data or Registration Data.
You are solely responsible for maintaining the confidentiality of your password and account and for any and all statements made and acts or omissions that occur through the use of your password and account, including any mail sent and any charges incurred. Therefore, you must take steps to ensure that others do not gain access to your password and account. Our personnel will never ask you for your password. You may not transfer or share your account with anyone, and we reserve the right to immediately terminate your account in the event of any unauthorized transfer or sharing thereof.
Software available on or through this site is subject to United States Export Controls. No software from this site may be downloaded or exported (a) into (or to a resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country which the United States has embargoed goods; or (b) anyone on the United States Treasury Department's list of Specially Designated Nationals or the United States Commerce Department's Table of Deny Orders. By downloading or using the software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Although this site may be accessible worldwide, we make no representation that materials on this site are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this site from other locations do so on their own initiative and are responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection
with this site is void where prohibited.
You agree that we may, in our sole discretion, terminate or suspend your access to all or part of the site with or without notice and for any reason, including, without limitation, breach of these Terms of Use. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating your relationship and may be referred to appropriate law enforcement authorities.
Upon termination or suspension, regardless of the reasons therefore, your right to use the services available on this site immediately ceases, and you acknowledge and agree that we 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 this site. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection therewith. Sections 1, 3, 5–11, 14, and 18–20 of these Terms of Use, as well as your liability for any unpaid fees, shall survive any termination.
This site (excluding any linked sites) is controlled by us from our offices within the State of Delaware, United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places has laws that may differ from those of Delaware, by accessing this site both of us agree that the statutes and laws of the State of Delaware, without regard to the conflicts of laws principles thereof and the United Nations Convention on the International Sales of Goods, will apply to all matters relating to the use of this site and the purchase of products and services available through this site. Each of us agrees and hereby submits to the exclusive personal jurisdiction and venue the courts located in Cook County, Illinois with respect to such matters.
All notices to a party shall be in writing and shall be made either via e-mail or conventional mail. Notices to us must be sent to the attention of Customer Service at notices@xchangeplus.com, if by e-mail, or at XchangePlus LLC, 1000 North Halsted Street, Suite 202B, Chicago, Illinois 60642 if by conventional mail. Notices to you may be sent either to the e-mail address supplied for your account or to the address supplied by you as part of your Registration Data. In addition, we may broadcast notices or messages through the site to inform you of changes to the site or other matters of importance, and such broadcasts shall constitute notice to you.
Any notices or communication under these Terms of Use will be deemed delivered to the party receiving such communication (1) on the delivery date if delivered personally to the party; (2) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, if sent by US mail, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile; or (5) on the delivery date if transmitted by confirmed e-mail.
These terms and conditions constitute the entire agreement and understanding between us concerning the subject matter hereof and supersedes all prior agreements and understandings of the parties with respect thereto. These Terms of Use may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for products or services which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by you and us. To the extent that anything in or associated with this site is in conflict or inconsistent with these Terms of Use, these Terms of Use shall take precedence.
In any action to enforce these Terms of Use, the prevailing party will be entitled to costs and attorneys' fees. Any cause of action brought by you against us or our Affiliates must be instituted with one year after the cause of action arises or be deemed forever waived and barred.
You may not assign your rights and obligations under these Terms of Use to any thing party, and any purported attempt to do so shall be null and void. We may free assign our rights and obligations under these Terms of Use.
You agree not to sell, resell, reproduce, duplicate, copy or use for any commercial purposes any portion of this site, or use of or access to this site.
In addition to any excuse provided by applicable law, we shall be excused from liability for nondelivery or delay in delivery of products and services available through our site arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.
If any part of these Terms of Use 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.
Any failure by us to enforce or exercise any provision of these Terms of Use or related rights shall not constitute a waiver of that right or provision.
TERMS AND CONDITIONS AGREEMENT
This Terms and Conditions ("Agreement") is a binding Agreement between XchangePlus LLC, a Delaware limited liability company ("Company") and You ("Customer"). This Agreement incorporates by reference (1) the Privacy Policy posted on www.xchangeplus.com ("Privacy Notice"), and (2) the Terms of Use posted on www.xchangeplus.com. By clicking the "Accept" button at the end of the registration process with xchangeplus.com, , you agree to be bound by the terms and conditions of this Agreement. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the legal authority to bind the legal entity to this Agreement, in which case "You" shall mean such entity. If You do not have such authority, or if You do not agree with the terms and conditions of this Agreement, You may not use the services (defined below).
The services covered by this Agreement include both free services that XchangePlus LLC and its affiliates (referred to together herein as "we" or "us") make available for no fee ("Free Services"), and services that we make available for a fee ("Paid Services"). The Free Services and the Paid Services are referred to collectively in this Agreement as the "Services." Each Free Service and Paid Service is referred to individually as a "Service."
1.1. Free Services. The Free Services include the transactions' overview page that we make available to you free of charge on the XchangePlus LLC -branded Web sites accessible from www.xchangeplus.com (collectively, the "Web Site’), except those web services for which we specifically provide a separate customer agreement.
1.2. Paid Services. The Paid Services include all web services and any related support services that we make available to you for a fee on the Web Site, except those web services for which we specifically provide a separate customer agreement. Our Paid Services include, but are not limited to:
If you use Paid Services, you may incur fees for transactions that you submit through the Payment Service provided, which is described in Section 5.6 below. We may, in our sole discretion, (a) begin charging fees for a Free Service, in which case such Service will thereafter be deemed a Paid Service, or (b) cease charging fees for a Paid Service, in which case such Service will thereafter be deemed a Free Service.
You agree that we may modify this Agreement or any policy or other terms referenced in this Agreement (collectively, ‘Additional Policies') at any time by posting a revised version of the Agreement or such Additional Policy on the Web Site. The revised terms shall be effective as follows:
By continuing to use or receive the Services after the effective date of any revisions to this Agreement or any Additional Policies, you agree to be bound by the revised Agreement or any revised Additional Policies. It is your responsibility to check the Web Site regularly for changes to this Agreement or the Additional Policies, as applicable.
3.1. Term. The term of this Agreement ("Term") will commence, and you may begin using the Services, once you agree to the terms and conditions of this Agreement by clicking the ‘Accept’ button at the end of the registration process for your account. The Agreement will remain in effect until terminated by you or us in accordance with this Section 3.
3.2. Termination by You for Convenience. You may terminate this Agreement for any reason or no reason at all, at your convenience, by (a) providing us written notice of termination in accordance with Section 15 and (b) closing your account for any Service for which we provide an account closing mechanism.
3.3. Termination or Suspension by Us Other Than for Cause.
3.3.1. Free Services. We may suspend your right and license to use any or all Free Services and any associated products (as defined in Section 6.1 below), or, if you are only using Free Services, terminate this Agreement in its entirety (and, accordingly, cease providing all Services to you), for any reason or for no reason, at our discretion at any time, immediately upon notice to you in accordance with the notice provisions set forth in Section 15 below.
3.3.2. Paid Services. We may suspend your right and license to use any or all Paid Services, or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to you), for any reason or for no reason, at our discretion at any time by providing you sixty (60) days' advance notice in accordance with the notice provisions set forth in Section 15 below.
3.4. Termination or Suspension by Us for Cause. We may suspend your right and license to use any individual Service or any set of Services, or terminate this Agreement in its entirety (and, accordingly, your right to use all Services), for cause effective as set forth below:
3.4.1. Immediately upon our notice to you in accordance with the notice provisions set forth in Section 15 below if: (a) you attempt a denial of service attack on any of the Services; (b) you seek to hack or break any security mechanism on any of the Services or we otherwise determine that your use of the Services poses a security or service risk to us, to any user of services offered by us, to any third-party sellers on any of our Web sites, or to any of our or their respective customers or may subject us or any third party to liability, damages or danger; (c) you otherwise use the Services in a way that disrupts or threatens the Services; (d) you are in default of your payment obligations hereunder and there is an unusual spike or increase in your use of the Services; (e) we determine, in our sole discretion, there is evidence of fraud with respect to your account; (f) you use any of the Company Content (as defined in Section 6.1) or Marks (as defined in Section 6.2) other than as expressly permitted herein; (g) we receive notice or we otherwise determine, in our sole discretion, that you may be using Company Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; (h) we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (i) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
3.4.2. Fifteen (15) days following our provision of notice to you in accordance with the notice provisions set forth in Section 15 below if you are in default of any payment obligation with respect to any of the Services or if any payment mechanism you have provided to us is invalid or charges are refused for such payment mechanism, and you fail to cure such payment obligation default or correct such payment mechanism problem within such 15-day period.
3.4.3. Five (5) days following our provision of notice to you in accordance with the notice provisions set forth in Section 15 below if you breach any other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure such breach within such five-day period.
3.5. Effect of Suspension or Termination.
3.5.1. Suspension. Upon our suspension of your use of any Services, in whole or in part, for any reason, (a) fees will continue to accrue for any Services that are still in use by you, notwithstanding the suspension; (b) you remain liable for all fees, charges, and any other obligations you have incurred through the date of suspension with respect to the Services; and (c) all of your rights with respect to the applicable Services shall be terminated during the period of the suspension.
3.5.2. Termination. Upon termination of this Agreement for any reason: (a) you remain liable for all fees, charges, and any other obligations you have incurred through the date of termination with respect to the Services; (b) all of your rights under this Agreement shall immediately terminate; and (c) you shall immediately return, or if instructed by us, destroy all Company Confidential Information (as defined in Section 9 below) then in your possession.
3.6. Survival. In the event this Agreement is terminated for any reason, Sections 3.5, 3.6, 3.7, 3.8, 4.2, 6, 8 (with respect to payments that are accrued but unpaid at the time of termination), and 9 through 16 will survive any such termination.
3.7. Data Preservation in the Event of Suspension or Termination.
3.7.1. In the Event of Suspension Other Than for Cause. In the event of a suspension by us of your access to any Service for any reason other than a for cause suspension under Section 3.4.1, during the period of suspension, (a) we will not
take any action to intentionally erase any of your data stored on the Services and (b) applicable Service data storage charges will continue to accrue.
3.7.2. In the Event of Termination Other Than for Cause. In the event of any termination by us of any Service or any set of Services, or termination of this Agreement in its entirety, other than a for cause termination under Section 3.4.1, (i) we will not take any action to intentionally erase any of your data stored on the Services for a period of thirty (30) days after the effective date of termination; and (ii) your post-termination retrieval of data stored on the Services will be conditioned on your payment of Service data storage charges for the period following termination, payment in full of any other amounts due us, and your compliance with terms and conditions we may establish with respect to such data retrieval.
3.7.3. In the Event of Other Suspension or Termination. Except as provided in Sections 3.7.1 and 3.7.2 above, we shall have no obligation to continue to store your data during any period of suspension or termination or to permit you to retrieve the same.
3.8. Post-Termination Assistance. Following the suspension or termination of your right to use the Services by us or by you for any reason other than a for cause termination (i.e., a termination under Section 3.2 or under Section 3.3), you shall be entitled to take advantage of any post-termination assistance we may generally make available with respect to the Services, such as data retrieval arrangements we may elect to make available. We may also endeavor to provide you unique post-suspension or post-termination assistance, but we shall be under no obligation to do so. Your right to take advantage of any such assistance, whether generally made available with respect to the Services or made available uniquely to you, shall be conditioned upon your acceptance of and compliance with any fees and terms we specify for such assistance.
Subject to your acceptance of and compliance with this Agreement and with the payment requirements for the Services that are set forth on the applicable Service detail page on the Web Site (as such payment terms may be updated from time to time), we hereby grant you a limited, non-exclusive, non-transferable, non-sublicenseable right and license, in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement.
4.1. Permitted Uses Generally.
4.1.1. You may create tasks, enter deadlines and submit/store associated information, data, text, files, pictures, documents and other real estate transaction materials ("Your Content") and to share Your Content with other transaction participants and third parties.
4.1.2. You may enable access and use of Your Content by other users, designated by You, in accordance with the terms of this Agreement.
4.2. Restricted Uses Generally.
4.2.1. You may not upload/store any debit or credit card information, bank account information, social security number, driver’s license information, or government ID information. XCHANGEPLUS WILL NOT HAVE ANY OBLIGATION TO MAINTAIN THE CONFIDENTIALITY OR SECURITY OF SUCH INFORMATION.
4.2.2. You may not interfere or attempt to interfere in any manner with the functionality or proper working of the Services.
4.2.3. You may not compile or use the Company services or any other information obtained through the Services for the purpose of direct marketing, spamming, unsolicited contacting of sellers or customers, or other impermissible advertising, marketing, or other activities, including, without limitation, any activities that violate Company's antispamming policies and regulations.
4.2.4. You may not remove, obscure, or alter any notice of any Mark, or other intellectual property or proprietary right designation appearing on or contained within the Services.
4.2.5. Subject to the terms and conditions of this Agreement, you may generally publicize your use of the Services; however, you may not issue any press release with respect to the Services or this Agreement without our prior written consent.
4.3. Accounts and Keys. Unless otherwise stated in the applicable Service Terms, you may only create one account per e-mail address. Company accounts are associated with one or more private keys, which are used to access the service. When you complete the account creation process, you will be issued unique account identifiers ("Account Identifiers"), and may add a public key to your account. Account Identifiers (a) identify your account and (b) allow you to make requests to Company. The Account Identifier is immutable and will always uniquely identify your Company account. Public key/private keys are unique to your account and are subject to change. You are fully responsible for all activities that occur under your Account Identifiers, regardless of whether such activities are undertaken by you or a third party. Therefore, you should contact us immediately if you believe a third party may be using your private key, or if your private key is otherwise lost or stolen. You are responsible for maintaining up-to-date and accurate information (including contact information) for your Company account. We are not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss, or failure to store any of Your Content or other data which you submit or use in connection with your account or the Services.
You may only use the Services in accordance with the applicable Service Terms.
6.1. XCHANGEPLUS Works. We may make available to you, for your installation, copying, and/or use in connection with the Services, from time to time, a variety of software, data, and other content and printed and electronic documentation (all such materials except those specifically made available by us under separate license terms, the "Company Works'). Subject to your acceptance of this Agreement, ongoing compliance with its terms and conditions with respect to the subject Service, and payment if and as required for your right to use the subject Service, we hereby grant to you, without the right to sublicense, a limited, non-exclusive, non-transferable license during the Term, under our intellectual
property or proprietary rights in the Company Works, only to install, copy, and use the Company Works solely in connection with and as necessary for your use of such Services and solely to the extent in compliance with all the terms and conditions of this Agreement. The Company Works may include, without limitation:
Sample source code which we may make available from time to time for use in connection with the Services ("Sample Source Code") and libraries which we may make available from time to time for use in connection with the Services ("Libraries") will be made available to you under separate license that accompanies each Sample Source Code or Library and the term "Company] Works," as used herein, specifically excludes any Sample Source Code or Libraries made available to you under separate license.
Except as may be expressly authorized under this Agreement:
6.2. Use of Marks. Your use of any trademarks, service marks, service or trade names, logos, and other designations of XCHANGEPLUS and its affiliates or licensors ("Marks") shall strictly comply with the Trademark Guidelines and the following provisions. You may use the Marks in conjunction with the display of the Company Content and for the purpose of indicating that your Application was created using the Services. You must immediately discontinue use of any Mark as specified by us at any time in writing. We may modify any Marks provided to you at any time, and upon notice, you will use only the modified Marks and not the old Marks. Other than as specified in this Agreement, you may not use any trademark, service mark, trade name, or other business identifier of XCHANGEPLUS or its affiliates unless you obtain XCHANGEPLUS's or its affiliates' prior written consent. In addition, you agree not to misrepresent or embellish the relationship between us and you, for example, by implying that we support, sponsor, endorse, or contribute money to you or your business endeavors.
6.3. Nonexclusive Rights. The rights granted by Company in this Agreement with respect to the Company Works, the Marks and the Services are nonexclusive, and Company reserves the right to: (a) itself act as a developer of products or services related to any of the products that you may develop in connection with your use of the Services; and (b) appoint third parties as developers or systems integrators who may offer products or services which compete with Company or your Application.
7.1. Downtime and Service Suspensions. In addition to our rights to terminate or suspend Services to you as described in Section 3 above, you acknowledge that: (a) your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures, or other interruptions; and (b) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (i) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (ii) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; or (iii) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions"). Without limitation to Section 11.5, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide you e-mail notice of any Service Suspension in accordance with the notice provisions set forth in Section 15 below and to post updates on the Web Sites regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.
7.2. Security. We strive to keep Your Content secure but cannot guarantee that we will be successful at doing so, given the nature of the Internet. Accordingly, without limitation to Section 4.3 above and Section 11.5 below, you acknowledge that you bear sole responsibility for adequate security, protection, and backup of Your Content and Applications. We will have no liability to you for any unauthorized access or use, corruption, deletion, destruction, or loss of any of Your Content or Applications.
8.1. Service Fees. In consideration of your use of any of the Paid Services, you agree to pay applicable fees for Paid Services in the amounts set forth on the respective Service detail pages on the Company Web Site (including any minimum subscription fees). You are responsible for any fees assessed by Company Payments for transactions that you submit to the Payment Service. Fees for any new Service or new Service feature will be effective upon posting by us on the Company Web Site for the applicable Service. We may increase or add new fees for any existing Service or Service feature, or implement a fee for any previously Free Service or Free Service feature, by giving you 30 days' advance notice. Such notice will be posted on the Company Web Site on the Service detail page for the affected Service. You agree that you are responsible for checking the Company Web site each month to confirm whether there are any new fees and their effective date(s). All fees payable by you are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax. You will provide such information to us as reasonably required to determine whether we are obligated to collect VAT from you, including without limitation your VAT identification number.
8.2. Payment. We may specify the manner in which you will pay any fees, and any such payment shall be subject to our general accounts receivable policies from time to time in effect. All amounts payable by you under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, you shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, you shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.
8.3. Special Pricing Programs. From time to time, we may offer free or discounted pricing for data transfer, data storage, and other usage of certain Services (each a "Special Pricing Program"). After a Special Pricing Program ends, normal charges will apply. You must comply with any additional terms, restrictions, or limitations (e.g., limitations on the total amount of usage) we impose in connection with the Special Pricing Program as described on the Service-specific detail pages on the Company Web Site. We may immediately terminate any account that we determine, in our sole discretion, is established or used to avoid the terms, restrictions, or limitations applicable to a Special Pricing Program.
9.1. Use and Disclosure. You shall not disclose Company Confidential Information during the Term or at any time during the three (3)-year period following the end of the Term. As used in this Agreement, "Company Confidential Information" means all nonpublic information disclosed by us, our business partners, or our or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Company Confidential Information includes, without limitation, (a) nonpublic information relating to our or our business partners' technology, customers, business plans, promotional and marketing activities, finances, and other business affairs (including, but not limited to, any information about or involving one of our so-called beta tests or a beta test product that you obtain as a result of your participation in such beta test), (b) third-party information that we are obligated to keep confidential, and (c) the nature, content, and existence of any discussions or negotiations between
you and us. Confidential Information does not include any information described in Section 9.2 or any information that you are required to disclose by law.
9.2. Excluded Information. Notwithstanding any other provision in this Agreement, you shall not have any confidentiality obligation to us under Section 9.1 above, with respect to any information provided or made available by us hereunder, and we shall not have any confidentiality or non-use obligation to you hereunder with respect to any information, software application, data, or content provided or made available by you hereunder that: (a) is or becomes publicly available without breach of this Agreement; (b) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (c) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (d) can be shown by documentation to have been independently developed by the receiving party.
9.3. Conflict with Separate Nondisclosure Agreement. If you and we are parties to a separate nondisclosure agreement ("Stand-Alone NDA") and there is a conflict between the terms of the Stand-Alone NDA and the terms of this Section 9, the terms of the Stand-Alone NDA shall control.
10.1. Our Services and the Company Works. Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title, and interest (including all intellectual property and proprietary rights) in and to: (a) the Services; (b) the Company Works; (c) the Marks; and (d) any other technology and software that we provide or use to provide the Services and the Company Works. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the Company Works, the Marks, or other technology and software (including third-party technology and software), except for the limited use and access rights described in this Agreement.
10.2. Your Applications, Data, and Content. Other than the rights and interests expressly set forth in this Agreement, and excluding Company Works and works derived from Company Works, you reserve all right, title, and interest (including all intellectual property and proprietary rights) in and to Your Content. We will not disclose Your Content, except: (a) if you expressly authorize us to do in connection with your use of the Services; or (b) as necessary to provide the Services to you, or to comply with the Agreement or the request of a governmental or regulatory body, subpoenas, or court orders.
10.3. Feedback. In the event you elect, in connection with any of the Services, to communicate to us suggestions for improvements to the Services, the Company Works, or the Marks (collectively, "Feedback"), we shall own all right, title, and interest in and to the same, even if you have designated the Feedback as confidential, and we shall be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title, and interest in and to the Feedback to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback.
10.4. Non-Assertion. During and after the term of the Agreement, with respect to any of the Services that you elect to use, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our customers, end users, vendors, business partners (including third-party sellers on Web Sites operated by or on behalf of us), licensors, sublicensees, or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.
11.1. Use of the Services. You represent and warrant that you will not use the Services, Company Works, and/or your Application and Your Content: (a) in a manner that infringes, violates, or misappropriates any rights of us or any third party; (b) to engage in spamming or other impermissible advertising, marketing, or other activities, including, without limitation, any activities that violate anti-spamming regulations, including, without limitation, the CAN SPAM Act of 2003; (c) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms, or other data that are subject to export; and/or (d) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
11.2. Applications and Content. You represent and warrant: (a) that you are solely responsible for the development, operation, and maintenance of Your Content, including without limitation, the accuracy, security, appropriateness and completeness of Your Content and all product-related materials and descriptions; (b) that you have the necessary rights and licenses, consents, permissions, waivers, and releases to use and display Your Content; (c) that Your Content (i) does not violate, misappropriate, or infringe, any rights of us or any third party, (ii) does not constitute defamation, invasion of privacy, or publicity, or otherwise violate any rights of any third party, or (iii) is not designed for use in any illegal activity or to promote illegal activities, including, without limitation, use in a manner that might be libelous or defamatory or otherwise malicious, illegal, or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (d) that Your Content does not contain any unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code (collectively "Harmful Components"); and (e) to the extent to which you use any of the Marks, that you will conduct your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of the Company.
11.3. Public Software and Feedback. You represent and warrant that you will not use, and will not authorize any third party to use, any Public Software in connection with the Services in any manner that requires, pursuant to the license applicable to such Public Software, that any Company Works or Services be (a) disclosed or distributed in source code form, (b) made available free of charge to recipients, or (c) modifiable without restriction by recipients. With respect to any Feedback, you represent and warrant that such Feedback, in whole or in part, contributed by or through you, (a) contains no third-party software or any software that may be considered Public Software and (b) does
not violate, misappropriate, or infringe any intellectual property rights of any third party. "Public Software" means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation, or other material that is distributed as free software, open source software, or similar licensing or distribution models, including, but not limited to software, documentation, or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) GNU's General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License, (b) The Artistic License (e.g., PERL), (c) the Mozilla Public License, (d) the Netscape Public License, (e) the Sun Community Source License (SCSL), (f) the Sun Industry Standards License (SISL), (g) the BSD License, and (h) the Apache License.
11.4. Authorization and Account Information. You represent and warrant that: (a) the information you provide in connection with your registration for the Services is accurate and complete; (b) if you are registering for the Services as an individual, you are at least 18 years of age and have the legal capacity to enter into this Agreement; and (c) if you are registering for the Services as an entity or organization, (i) you are duly authorized to do business in the country or countries where you operate, (ii) the individual clicking ‘Accept’ on this Agreement and completing the registration for the Services meets the requirements of subsection (b) above and is an authorized representative of your entity, and (iii) your employees, officers, representatives, and other agents accessing the Services are duly authorized to access the Services and to legally bind you to this Agreement and all transactions conducted under your account.
11.5. Disclaimers. COMPANY WORKS, THE MARKS, THE SERVICES, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS, AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED ‘AS IS.’ WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY PAYMENT SERVICES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
11.6. Maintenance of our Data are Your Responsibility. In addition to the foregoing, we specifically disclaim all liability, and you shall be solely responsible for the uploading and maintenance of your documents and data and for all materials that appear on or within Your Content or Application and you agree that you shall, without limitation, be solely responsible for:
11.6.1. the accuracy and appropriateness of any materials posted on or within Your Content or Application; and
11.6.2. ensuring that any materials posted on your site are not illegal and do not promote illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, illegal, or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;
11.7. Links. The Company Web Site and/or the Services may contain links to Web sites that are not under our control ("Third-Party Sites"). We are not responsible for the contents or functionality of any Third-Party Sites or any Web site that can be accessed via links on any Third-Party Site. We provide these links to you as a convenience and the inclusion of any such links does not constitute or imply our endorsement or validation of any Third-Party Site.
11.8. Limitations of Liability. NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
12.1. General. You agree to indemnify, defend, and hold us, our affiliates, and licensors, each of our and their business partners (including third-party sellers on Web Sites operated by or on behalf of us) and each of our and their respective employees, officers, directors, and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs, and expenses (including reasonable attorney's fees), arising out of or in connection with any claim arising out of (a) your use of the Services and/or Company Works in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, Additional Policies, and/or applicable law, (b) Your Content, or the combination of either with other applications, content, or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights, and/or the use, development, design, manufacture, production, advertising, promotion, and/or marketing of Your Content, (c) your violation of any term or condition of this Agreement or any applicable Additional Policies, including without limitation, your representations and warranties, or (d) you or your employees' or personnel's negligence or willful misconduct.
12.2. Notification. We agree to promptly notify you of any claim subject to indemnification, provided that our failure to promptly notify you shall not affect your obligations hereunder except to the extent that our failure to promptly notify you delays or prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim with counsel of your own choosing (subject to our written consent) and to settle such claim as you deem appropriate, provided that you shall not enter into any settlement without our prior written consent and provided that we may, at any time, elect to take over control of the defense and settlement of the claim.
13.1. U.S. Government License Rights. All Services provided to the U.S. Government are provided under the commercial license rights and restrictions generally applicable under this Agreement.
14.1. Notwithstanding anything to the contrary, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Company's or any third party's intellectual property and/or proprietary rights. Any dispute relating in any way to your visit to the Company Web Site or to products or services sold or distributed by Company or its affiliates in which the aggregate total claim for relief sought on behalf of one or more parties exceeds $7,500 shall be adjudicated in any state or federal court in Cook County, Illinois, and you consent to exclusive jurisdiction and venue in such courts. You further acknowledge that our rights in the Company Works are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.
14.2. Governing Law. By using the Services, you agree that the laws of the State of Delaware, without regard to principles of conflicts of law, will govern this Agreement and any dispute of any sort that might arise between you and us. The parties expressly exclude application of the United Nations Convention for the International Sale of Goods to this Agreement.
15.1. To You. Except as otherwise set forth herein, notices made by us to you under this Agreement that affect our customers generally (e.g., notices of updated fees, etc.) will be posted on the Company Web Site. Notices made by us under this Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be provided to you via the e-mail address provided to us in your registration for the Services or in any updated e-mail address you provide to us in accordance with standard account information update procedures we may provide from time to time. It is your responsibility to keep your e-mail address current and you will be deemed to have received any e-mail sent to any such e-mail address, upon our sending of the e-mail, whether or not you actually receive the e-mail.
15.2. To Us. For notices made by you to us under this Agreement and for questions regarding this Agreement or the Services, you may contact Company as follows:
notices@xchangeplus.com
and/or
XchangePlus LLC
1000 North Halsted Avenue
Suite 202B
Chicago, Illinois 60642
15.3. Language. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
16.1. Third-Party Activities. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Agreement, you shall be deemed to have taken the action yourself.
16.2. Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
16.3. Waivers. The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.
16.4. Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of, the parties and their respective successors and assigns.
16.5. Entire Agreement. This Agreement incorporates by reference all policies and guidelines posted on the Company Web site and constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter.
16.6. No Endorsement. You understand and acknowledge that we are not certifying or endorsing, and have no obligation to certify or endorse, any of your Applications or Your Content.
16.7. Relationship. Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership, or any employer/employee or fiduciary or franchise relationship between you and us (or any of our affiliates).