Effective Date: July 8, 2021
Please review THESE TERMS carefully. By using THE Service, you acknowledge that you ARE AT LEAST 18 YEARS OLD, ARE LOCATED IN THE UNITED STATES AND accept the TERMS set forth herein. IF YOU ARE NOT AT LEAST 18 YEARS OLD, DO NOT RESIDE IN THE UNITED STATES AND do not accept such TERMS, you may not access the Service.
- 1. Binding Arbitration
THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND XCELERATE MAY HAVE AGAINST EACH OTHER CAN BE BROUGHT. THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST XCELERATE TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. Please review THE Section BELOW ENTITLED, “ARBITRATION AGREEMENT” for the details regarding your agreement to arbitrate any disputes with xcelerate.
- 2. Changes to Terms
The Effective Date of these Terms is set forth at the top of this webpage. We may change these Terms from time to time in our discretion. Changes will be posted to this webpage. We encourage you to return to this webpage frequently so that you are aware of our current Terms. Your continued use of the Service after the Effective Date constitutes your acceptance of the amended Terms. The amended Terms supersede all previous versions.
- 3. Privacy
- 4. Intellectual Property
The Service, and the information, files, documents, text, photographs, images, audio, and video which it contains and any material made available for download on the Service (collectively, the “Content”) are the property of us or our licensors, as applicable. The Service and Contents are protected by United States and international copyright and trademark laws. The Content may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized or approved in writing by us.
Xcelerate, the Xcelerate logo, and other Xcelerate marks, graphics, logos, scripts and sounds are trademarks of Xcelerate. No Xcelerate trademarks may be copied, downloaded or otherwise used or exploited.
All rights not expressly granted herein are reserved to us and our licensors.
- 5. License
Xcelerate grants you a limited, non-exclusive, revocable license to access and make personal, non-commercial, use of the Service subject to these Terms. Access to certain content may require the purchase of a subscription, in which case your license to access such content is further limited to the term of your subscription. Neither the Service nor any part of it may not be reproduced, copied, framed or otherwise exploited for any commercial purpose without the express prior written consent of Xcelerate.
- 6. Subscriptions and Payment[ACN2]
Subscription Fees. While we may offer Content for free from time to time, we generally charge a fee to access the Service. We will bill you in advance for your subscription. Your subscription will continue and automatically renew on a recurring basis corresponding to the term of your subscription unless and until you cancel your subscription, or your account is otherwise suspended or terminated pursuant to these Terms. Xcelerate reserves the right to change the terms of your subscription, including price, from time to time, effective as of the beginning of your next billing period following the date of the change. We will give you advance notice of these changes, but we will not be able to notify you of changes in any applicable taxes.
Payment Method. Unless otherwise indicated, you will be required to provide a credit card or other payment method accepted by Xcelerate, as may be updated from time to time (“Payment Method”). We will charge your Payment Method a periodic subscription fee on a recurring basis corresponding to the term of your subscription, and any applicable taxes. You are solely responsible for any and all fees charged to your Payment Method. When you provide a Payment Method, we may attempt to verify the information you entered by processing an authorization hold. We do not charge you in connection with this authorization hold, but your available balance or credit limit may be reduced. If you want to use a different Payment Method than the one you signed up to use during registration, you may edit your Payment Method information by logging in on the Service and viewing your account details.
Billing Holds. In the event of a failed attempt to charge to your Payment Method (e.g., if your Payment Method has expired), we reserve the right to retry billing your Payment Method. In the event that you or we (through our payment service providers) update your Payment Method to remedy a change in validity or expiration date, we will automatically resume billing you for your subscription to the Service. We may suspend or cancel your access to the Service if we remain unable to successfully charge a valid Payment Method. We also reserve the right to pursue any amounts you fail to pay in connection with your subscription, including collection costs, bank overdraft fees, collection agency fees, reasonable attorneys’ fees, and arbitration or court costs.
Billing Period. As used in these Terms, “billing” shall indicate either a charge or debit, as applicable, against your Payment Method. We will automatically bill your Payment Method on the later of the day you start your subscription or the day your free trial ends, and on each recurring billing date thereafter. The “billing period” is the interval of time between each recurring billing date and corresponds to the term of your subscription. Where applicable, charges may be prorated for any partial month of service. You acknowledge that the timing of when you are billed and the amount billed each billing period may vary.
Cancellation and Refunds. You can cancel your subscription by logging into your Service account and following the instructions on your account page. You must cancel your subscription prior to 11:59 p.m. Eastern time on the day before your next recurring billing date in order to avoid being charged. If you cancel your subscription, you will continue to have access to the Service through the end of your current billing period. If you cancel, you will also forfeit any service, referral, or redeemed gift card credits, if applicable.
All Payments are Nonrefundable. If you cancel, modify your subscription, or if your account is otherwise terminated under these Terms, you will not receive a credit, including for partially used periods of Service. There are circumstances where Xcelerate may provide credits on a case by case basis. The amount and form of such credits, and the decision to provide them, are at Xcelerate’s sole and absolute discretion.
Free Trials. On occasion, we may offer free trials to a particular Service, subject to specific terms explained during your sign-up. Xcelerate reserves the right to determine eligibility for free trials, which may vary based on factors including the Service selected, how recently you redeemed a free trial, and whether the Service is part of a combined offering. Certain limitations may also exist with respect to combining free trials with any other offers. It is very important to understand that you will not receive a notice from Xcelerate that your free trial has ended and that payment for your subscription is due. If you wish to avoid charges to your Payment Method, you must cancel your subscription prior to midnight Eastern Time on the last day of your free trial period. Because the Service are offered in multiple time zones, for consistency, a “day” for purposes of these Terms begins at 12:00 a.m. Eastern Time and ends at 11:59 p.m. Eastern time of that same calendar day. You may cancel your subscription at any time as described in the “Cancellation and Refunds” section of these Terms. If you cancel your subscription during a free trial or while using a promotional code or other credits, cancellation may be effective immediately.
Promotions. If we offer you a promotion, the specific terms of the promotion will be disclosed during your sign-up or in other materials provided to you. We will begin billing your Payment Method for your subscription at the then-current, non-promotional price after your promotion ends unless you cancel prior to the end of your promotion or unless otherwise disclosed.
- 7. Links to Third Party Services
- 8. User Accounts
You may register an account on the Service. You agree that the information you provide to us during the registration process and at all other times when you use the Service is accurate, current, and complete, and that you will keep it up to date at all times. If you provide any information that is, or that Xcelerate has reasonable grounds to suspect is, untrue, inaccurate, not current, or incomplete, Xcelerate has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
You are the sole authorized user of any account you create through the Service and are solely and fully responsible for all activities that occur under your account. You may not authorize others to use your accountholder status, and you may not assign or otherwise transfer your account to any other person or entity. If you have reason to believe that your account is no longer secure, you must immediately notify us by contacting us at the contact information set forth at the end of these Terms. Xcelerate will not be liable for losses, damages, liability, expenses, and fees incurred by Xcelerate or a third party arising from someone else using your account regardless of whether you have notified us of such unauthorized use. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account.
- 9. Security and Restrictions
You are prohibited from violating or attempting to violate the security of the Service, including, without limitation, by (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) accessing or using the Service or any portion thereof without authorization; or (d) introducing any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
You agree not to use the Service:
- In any way that violates any applicable federal, state, local or international law or regulation;
- To collect or harvest any information that might identify a person (for example, usernames or faces), unless permitted by that person;
- To engage in any conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determined by us, may harm us or users of the Service or expose them to liability;
- Use the Service in any manner that could disable, overburden, damage, or impair the Service or interfere with any other party’s use of the Service;
- Use the Service to distribute unsolicited promotional or commercial content or other unwanted or mass solicitations;
- Use any robot, spider or other automatic device, process or means to access the Service for any purpose, including monitoring or copying any of the materials on the Service;
- Use any manual process to monitor or copy any of the materials on the Service or for any other unauthorized purpose without our prior written consent;
- Use any device, software or routine that interferes with the proper working of the Service; or
- Otherwise attempt to interfere with the proper working of the Service.
When using the Service, you may have the opportunity to transmit, upload or post to the Service content and information including audio, musical works, videos, comments, data, images, sounds, text or the like (“User Content”). Xcelerate cannot and does not guarantee the confidentiality of User Content. User Content may be visible to other users of the Service and the general public. When you post User Content, it may be associated with your name or other user identification. We strongly discourage posting additional personal information such as your email address, street address or telephone number when posting User Content.
You are responsible for the User Content you post to the Service and must comply with applicable laws, rules and regulations when posting such User Content. You represent and warrant that you have or have obtained all rights, licenses, consents, permissions, power and/or authority necessary to post the User Content on the Service. Any unauthorized use of copyright protected material within your User Content (including by way of reproduction, distribution, modification, adaptation, public display, public performance, preparation of derivative works, making available or otherwise communicating to the public via the Service), independent of whether it is or becomes unauthorized at a later point, may constitute an infringement of third party rights and is strictly prohibited.
You represent and warrant to Us that you or the owner of your User Content own the copyright and other intellectual property rights in the User Content. You hereby grant Xcelerate an unconditional, irrevocable, non-exclusive, royalty-free, fully paid up, transferable, sublicensable, perpetual, worldwide license to use, reproduce, modify, adapt, prepare derivative works of, distribute, transmit, publish, and publicly perform, and to authorize other users of the Service and other third parties to view, access, use, reproduce, modify, adapt, prepare derivative works of, distribute, transmit, publish, and publicly perform your User Content in any format and on any platform, either now known or hereinafter invented.
In submitting User Content through the Service, you agree you will not:
- Submit material that is unlawful, obscene, lewd, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, excessively violent, or that encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate or objectionable;
- Submit material that is false, misleading and/or not written in good faith;
- Post any unsolicited or unauthorized advertisements, solicitations of business or employment, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes” or any other prohibited form of solicitation;
- Impersonate another person;
- Submit material that is copyrighted, protected by trade secret or otherwise subject to third party intellectual property or proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Xcelerate all of the license rights granted herein; or
- Submit material that is malicious or destructive in nature, or contain a virus, malware or other computer programming routine or engine that is intended to damage or otherwise interfere with any system, data, or information.
Xcelerate reserves the right, but has no obligation, to refuse to post, block or remove User Content from the Service for any reason in our sole discretion. Xcelerate may terminate your access to or use of the Service or terminate your account to prevent further posting or distribution of User Content.
We do not guarantee the accuracy, integrity, appropriateness or quality of any User Content, and under no circumstances will we be liable in any way for any User Content including, but not limited to, any claims for infringement of intellectual property rights, rights of privacy or publicity rights, any claims relating to publication of abusive, defamatory, pornographic, or obscene material, or any claims relating to the completeness, accuracy, currency or reliability of any information provided by users of the Service. By using the Service, you irrevocably waive the right to assert any claim with respect to any of the foregoing against Xcelerate or any of its successors, assigns, employees, agents, directors, officers or shareholders. IF YOU ARE A CALIFORNIA RESIDENT, YOU ACKNOWLEDGE AND AGREE THAT YOU WAIVE THE PROVISIONS OF CALIFORNIA CIVIL CODE § 1542, WHICH STATES:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
IF YOU ARE A RESIDENT OF A STATE OTHER THAN CALIFORNIA YOU WAIVE ANY SIMILAR PROVISION UNDER APPLICABLE STATE LAW.
You hereby acknowledge and agree that Xcelerate (i) stores User Content at the direction, request and with the authorization of its users, (ii) acts merely as a passive conduit and/or host for the uploading, storage and distribution of such User Content, and (iii) plays no active role and gives no assistance in the presentation or use of the User Content. You are solely responsible for all User Content that you upload, post or distribute to, on or through the Service, and to the extent permissible by law, Xcelerate excludes all liability with respect to all User Content and the activities of its users with respect thereto.
You hereby acknowledge and agree that Xcelerate cannot and does not review the content created or uploaded by its users, and neither Xcelerate nor its successors, assigns, employees, agents, directors, officers and shareholders has any obligation, and may, but does not undertake or assume any duty to, monitor the Service for content that is inappropriate, that does or might infringe any third party rights, or has otherwise been uploaded in breach of these Terms or applicable law.
- 11. Copyright Policy
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the Service infringe your copyright, you (or your agent) may send Xcelerate a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked. The notice must include the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
- Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of such works);
- Identification of the specific material or link alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Xcelerate to locate the material on the Service;
- Your name, address, telephone number, and email address (if available);
- A statement 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
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Xcelerate a counter-notice. Notices and counter-notices with respect to the Service should be sent to the contact address set forth at the end of these Terms.
- 12. Disclaimer and Limitation of Liability
WE DO NOT WARRANT THAT ACCESS TO OR USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. THE SITE IS PROVIDED BY XCELERATE ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, XCELERATE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE INFORMATION, CONTENT OR MATERIALS CONTAINED WITHIN THE SITE, INCLUDING USER CONTENT. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL XCELERATE OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES OF WHATSOEVER KIND ARISING OUT OF ACCESS TO OR USE OF THE SITE, SITE-RELATED SERVICES OR ANY INFORMATION, CONTENT OR MATERIALS CONTAINED WITHIN THE SITE, INCLUDING USER CONTENT.
Any claims arising in connection with your use of the Service or any services used through the Service must be brought within one (1) year of the date of the event giving rise to such action occurred.
- 13. Indemnification
You agree to indemnify, defend and hold harmless us and our affiliates, and our respective officers, directors, employees, agents and representatives from and against all losses, expenses, damages, and costs, including reasonable attorneys’ fees, resulting from your access and use of the Service, any violation by you of these Terms or from our termination of your access to or use of the Service. Such termination will not affect either party’s rights or obligations, which accrued before the termination.
- 14. Arbitration Agreement
In consideration of and as a condition of your use of the Service you and Xcelerate (collectively, “the parties”) agree as follows (the “Arbitration Agreement”):
Applicability; Exclusions; Court and Jury Trial Waiver
The parties agree that any and all covered disputes (as defined below) that either party has the legal right to sue for in court, whether now or in the future, shall be subject to final and binding arbitration under the arbitration provisions set forth below. This means that the parties have selected arbitration as the sole and exclusive forum for the parties to sue or be sued in for all covered disputes, regardless of when the dispute first arose or arises and irrespective of the time period(s) involved in the dispute. The term “covered disputes” means all disputes and claims between the parties, including any disputes or claims: arising out of or relating to these Terms; relating to the relationship between the parties; arising under federal, state, and local statutes and laws, municipal ordinances, executive orders, contract, tort, public policy, or common law (judge-made law).
The parties intend to require arbitration of all covered disputes that can lawfully be arbitrated. It is understood by the parties that the term “covered disputes” shall cover and include all such disputes not only between the parties to these Terms but also all disputes or claims against any of your heirs, executors, personal representatives, and assigns, and all such disputes or claims not only against Xcelerate but also against any and all of its affiliates, subsidiaries, and parents collectively and its and their predecessors and successors and any of its and their collective officers, agents, employees, members, shareholders, directors, managers, and attorneys.
Usage of JAMS Streamlined or Comprehensive Arbitration Rules and Procedures; Arbitrator to Decide All Issues; Arbitrator’s Decisions Are Final and Binding
Either party shall initiate arbitration under either the JAMS Streamlined or Comprehensive Arbitration Rules and Procedures (which are currently available for review at https://www.jamsadr.com/adr-rules-procedures/). The arbitrator (and not a court) shall decide all issues in any covered dispute including, but not limited to, issues regarding the non-availability of class arbitration, timeliness, scope of arbitrator’s authority, arbitration procedures, any issues regarding arbitrability of the parties’ dispute, statute of limitations, and all other issues regarding the application, interpretation, and implementation of these Terms. The arbitrator’s decisions shall be final and binding. The parties agree that a court of competent jurisdiction shall have the authority to enter a judgment upon the award made by the arbitrator or to confirm an arbitration award, and any such proceeding shall not itself be deemed a covered dispute.
Selection and Authority of Arbitrator; Full Remedies Available; Enforceability
The parties agree that a single arbitrator shall be selected by the parties consistent with the applicable JAMS Rules and Procedures as they exist at the time of the Terms’ execution. To the fullest extent permitted by law, the arbitrator shall have the power and authority to award any remedy or relief available under applicable law and shall be the sole authority to interpret and apply the provisions of these Terms. The arbitrator shall have the authority to apply any federal, state, local, or municipal law, or executive order, or any common law that the Arbitrator deems applicable to the covered dispute. If there are any ambiguities in these Terms, it is the parties’ intent that all ambiguities be resolved in favor of arbitration. If any provision of this Arbitration Agreement is unenforceable, the remainder of this Arbitration Agreement shall remain in full force and effect.
Class and Collective Action Waiver; No Consolidated or Joint Actions
The parties agree that all covered disputes brought against each other will be arbitrated on an individual basis only and not in a class action arbitration, a collective action arbitration, or on any other group, representative, consolidated, or joint basis. The arbitrator shall have no authority to consider or resolve any covered dispute or any claim or issue in a covered dispute on any basis other than on an individual basis and may not proceed or direct the parties to proceed on a class or collective action basis or consolidate or join one or more covered disputes pertaining to you with any other individual’s or entity’s covered dispute(s). The provisions in this Arbitration Agreement mean that both parties waive their right to commence, become a party to, or in any way participate in any class action, collective action, or group or representative action or claim against the other party or in any such action or claim consolidated or joined with another party, with respect to any covered dispute, and each party agrees to opt-out of or be severed from any such action or proceeding.
The parties agree that they shall share equally (each pay one-half) the fees and costs of the arbitrator and the fees and costs of arbitration charged by JAMS; except that: (i) in all cases where required by law, Xcelerate will pay the full amount of the arbitrator’s and JAMS arbitration fees and costs; and (ii) where the arbitrator determines that it is appropriate or necessary based on your financial resources, Xcelerate shall pay more than one-half, in an amount to be determined by the arbitrator as fair and equitable. Each party shall bear the cost of his/her/its own legal fees and costs, including but not limited to attorneys’ fees and expert witness fees, subject to any right to recover such fees and costs under applicable law, which the arbitrator shall apply where applicable. In rendering an arbitration award, the arbitrator shall apply applicable and appropriate law and shall award all statutory remedies and penalties, including attorneys’ fees and costs to the extent authorized by and consistent with law. The award shall be in writing and the arbitrator shall set forth the essential findings of fact and law. Either party may request that a transcript and/or recording of the hearing be made.
- 15. Miscellaneous
These Terms shall be governed by the laws of the Commonwealth of Pennsylvania. To the extent that the arbitration provision outlined in Section 14 is not applicable (e.g., when confirming an arbitration award), you and Xcelerate agree to submit to the exclusive jurisdiction of the courts located in the Commonwealth of Pennsylvania.
You represent and warrant that you shall comply with all laws and regulations that apply to your access and use of the Service and any Service-related services, including, but not limited to, any applicable national laws that prohibit the export or transmission of technical data or software to certain territories or jurisdictions.
We reserve the right to seek all remedies available at law and in equity for violations of these Terms, including the right to remove your account and any contents generated by you on the Service, block your access to the Service, block IP addresses.
If any provision of these Terms is held to be unenforceable, the remaining Terms shall remain in full force and effect, and the unenforceable provision shall be replaced by an enforceable provision that comes closest to the intention underlying the unenforceable provision.
No waiver by us of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition. Our failure to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any right.
- 16. How to Contact Us
If you have any questions, comments or notices regarding these Terms, please contact us at email@example.com.
[ACN2]Internal Note: If paid subscriptions will be offered to view certain content, please review these terms for accuracy as it relates to the description of company processes. E.g., could a user cancel their subscription by logging into their user account?