By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you regarding the use of the Services.
Notwithstanding the foregoing, these Terms do not supersede or otherwise impact the enforceability of any agreements you may have with XPEDE or its subsidiaries regarding driving and/or delivery/pick up services. To the extent (but only to the extent) any agreement you may have with XPEDE regarding driving, delivering and/or pick up services conflicts with these Terms, those agreements (and not these Terms) will prevail.
XPEDE may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
IMPORTANT: PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND XPEDE CAN BE BROUGHT, INCLUDING THE ARBITRATION AGREEMENT (SEE SECTION 5 BELOW). PLEASE REVIEW THE ARBITRATION AGREEMENT BELOW CAREFULLY, AS IT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH XPEDE ON AN INDIVIDUAL BASIS AND, WITH LIMITED EXCEPTIONS, THROUGH FINAL AND BINDING ARBITRATION (AS DESCRIBED IN SECTION 5 BELOW). (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, EXCEPT AS SET FORTH IN SECTION 5(f); AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION, IF THERE IS ANY. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Supplemental terms may apply to certain options or offers available through the Services, such as policies for a particular delivery/pick up or logistics option, event, program, activity, or promotion. Such supplemental terms will be disclosed to you in connection with the applicable option or offer. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable option or offer. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable option or offer.
XPEDE may make changes to these Terms from time to time. If XPEDE makes changes, it will provide you with notice of such changes, such as by sending an email, providing a notice through the Services, or updating the date at the top of these Terms. Unless XPEDE says otherwise in its notice, the amended Terms will be effective immediately and your continued access to and use of the Services after XPEDE provides such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using the Services.
If you access any of our websites located at https://www.xpede.net, install or use our XPEDE mobile application, install or use any other Platform supplied by XPEDE, or access any information, function, or service available or enabled by XPEDE or complete the XPEDE account registration process, you, your heirs, assigns, and successors (collectively, “you” or “your”) hereby represent and warrant that:
- You have read, understand, and agree to be bound by this Agreement;
- You are of legal age in the jurisdiction in which you reside to form a binding contract with XPEDE; and
- You have the authority to enter into the Agreement personally and, if applicable, on behalf of any organization on whose behalf you have created an account and to bind such organization to the Agreement.
The terms “User” and “Users” refer to all individuals and other persons who access or use the Services, including, without limitation, any organizations that register accounts or otherwise access or use the Services through their respective representatives. Except as otherwise provided in this Agreement, if you do not agree to be bound by the Agreement, you may not access or use the Services.
The Platform & Services
XPEDE operates a Platform that is offered in a number of forms, including mobile and/or web based applications (“Applications”). Among other things, the XPEDE Platform enables you to: (i) receive services rendered by XPEDE that facilitate your connection to independent third party providers, including delivery drivers/couriers (“Third Party Providers”), for the purchase of services, such as delivery and/or pick up services of envelopes, packages, and/or parcels from those Third Party Providers; (ii) receive any related content or services, including payment processing and customer support; (iii) obtain and fulfill delivery or pick up orders and providing delivery or pick up services to the general public and businesses when you are a delivery driver/courier (“Driver Platform). The XPEDE Platform and the XPEDE content or services described in this Section are collectively referred to as “the Services”. Unless otherwise agreed by XPEDE in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use.
YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN DELIVERY OR PICK UP SERVICES FROM THIRD PARTY PROVIDERS THROUGH THE USE OF THE XPEDE PLATFORM AND SERVICES DOES NOT ESTABLISH XPEDE AS A PROVIDER OR EMPLOYER OF DELIVERY COURIER AND/OR PROPERTY/MOTOR CARRIER. XPEDE IS NOT A COMMON OR MOTOR CARRIER AND USE OF THE XPEDE PLATFORM IS ONLY OPEN TO REGISTERED USERS OF THE XPEDE PLATFORM AND NOT TO THE GENERAL PUBLIC.
YOU ACKNOWLEDGE THAT INDEPENDENT THIRD PARTY PROVIDERS, INCLUDING DRIVERS/COURIERS ARE NOT ACTUAL AGENTS, APPARENT AGENTS, OSTENSIBLE AGENTS, OR EMPLOYEES OF XPEDE IN ANY WAY.
YOU ALSO ACKNOWLEDGE THAT ANY SAFETY RELATED EFFORT, FEATURE, PROCESS, POLICY, STANDARD OR OTHER EFFORT UNDERTAKEN BY XPEDE, IN THE INTEREST OF PUBLIC SAFETY (WHETHER REQUIRED BY APPLICABLE REGULATIONS OR NOT), IS NOT AN INDICIA OF AN EMPLOYMENT, ACTUAL AGENCY, APPARENT AGENCY, OR OSTENSIBLE AGENCY RELATIONSHIP WITH AN INDEPENDENT THIRD PARTY DRIVER/COURIER
FOR INDEPENDENT THIRD PARTY PROVIDERS, YOU AGREE THAT YOU WILL USE THE DRIVER PLATFORM FOR THE SOLE PURPOSE OF PROVIDING THE SERVICES THAT YOU AGREED TO IN THE INDEPENDENT CONTRACTOR AGREEMENT.
Subject to your compliance with these Terms, XPEDE grants you a limited, non-exclusive, nonsublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by XPEDE and XPEDE's licensors.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by XPEDE; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
Third Party Interactions and Content
You acknowledge and agree that the availability of the Applications may be dependent on the third party from which you received the Application’s license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge and agree that this Agreement is between you and XPEDE and not with the App Store and that XPEDE is responsible for the provision of Services as described in this Agreement. However, if you downloaded the Application from the Apple App Store, Apple and its subsidiaries are third-party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof. This Agreement incorporates by reference Apple’s Licensed Application End User License Agreement, for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement will control.
The Services and all rights therein are and shall remain XPEDE's property or the property of XPEDE's licensors. Neither these Terms nor your use of the Services convey or grant to you any rights in or related to the Services except for the limited license granted above.
You agree that you will not use XPEDE’s trademarks, service marks, or trade dress or any similar names, marks, or trade dress (“XPEDE’s Marks”), aside from use incidental to your use of the Services, without express, written permission from XPEDE. This prohibition on using XPEDE’s Marks includes, but is not limited to, use in domain names, websites, and social media accounts.
XPEDE reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the Platform, including the Driver Platform, and/or services offered on or through the Platform (or any part thereof), including but not limited to the features, look and feel, and functional elements and related services.
User Access and Use of the Services
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account, unless a specific Service permits otherwise. You cannot register for or maintain an Account if you have previously been banned from accessing or using the Services. Account registration requires you to submit to XPEDE certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method supported by XPEDE. For more information regarding XPEDE’s use of your personal information, please see our Privacy Notice currently available at https://xpede.net/web/privacy-policy . You agree to maintain accurate, complete, and up-to-date information in your Account, including a valid phone number, address and payment method. Your failure to comply with these Terms (including policies and supplemental terms) including, without limitation, your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by XPEDE in writing, you may only possess one Account. You agree that you shall monitor your account to prevent use by minors, and you will accept full responsibility for any unauthorized use of your password or your account. You may not authorize others to use your User status, and you may not assign or otherwise transfer your User account to any other person or entity. Should you suspect that any unauthorized party may be using your password or account, you will notify XPEDE immediately. XPEDE will not be liable and you may be liable for losses, damages, liability, expenses, and fees incurred by XPEDE or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use. If you provide any information that is untrue, inaccurate, not current, or incomplete, or XPEDE has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, XPEDE has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). We may enable or require you to use a single pair of login credentials to use the XPEDE services. You agree not to create an account or use the Services if you have been previously removed by XPEDE, or if you have been previously banned from use of the Services.
Rules and Prohibitions
Without limiting other rules and prohibitions in this Agreement, by using the Services, you agree that:
- You will only use the Services for lawful purposes; you will not use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes; and you will not engage in conduct that harms other Users, XPEDE employees, or our community.
- You will only use the Services in accordance with all applicable laws, including copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights.
- You will only access the Services using means explicitly authorized by XPEDE.
- You will not use another User’s account, impersonate any person or entity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Services..
- You will not use the Services to cause nuisance, annoyance or inconvenience
- You will not use the Services, or any content accessible through the Services, for any commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to, any Merchant, User or Contractor, unless XPEDE has given you prior permission to do so in writing.
- You will not copy or distribute the Platform or any content displayed through the Services, including Merchants’ menu content and reviews, for republication in any format or media.
- You will not compile, directly or indirectly, any content displayed through the Services except for your personal, noncommercial use.
- The information you provide to us when you register an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.
- You will keep secure and confidential your account password or any identification credentials we provide you which allows access to the Services.
- You will use the Platform and Services only for your own use and will not directly or indirectly resell, license or transfer the Platform, Services or content displayed by the Services to a third party.
- You will not use the Services in any way that could damage, disable, overburden or impair any XPEDE server, or the networks connected to any XPEDE server.
- You will not attempt to gain unauthorized access to the Services and/or to any account, resource, computer system, and/or network connected to any XPEDE server.
- You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures XPEDE may use to prevent or restrict access to the Services or use of the Services or the content therein.
- You will not deep-link to our websites or access our websites manually or with any robot, spider, web crawler, extraction Platform, automated process and/or device to scrape, copy, index, frame, or monitor any portion of our websites or any content on our websites.
- You will not scrape or otherwise conduct any systematic retrieval of data or other content from the Services.
- You will not try to harm other Users, XPEDE, or the Services in any way whatsoever.
- You will not engage in threatening, harassing, racist, sexist or any other behavior that XPEDE deems inappropriate when using the Services.
- You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Services.
- You will not abuse our promotional or credit code system, including by redeeming multiple coupons at once or by opening multiple accounts to benefit from offers available only to first-time users.
- You will not attempt to undertake any of the foregoing.
In the event that we believe or determine that you have breached any of the aforementioned, we reserve the right to suspend and/or permanently deactivate your account at our sole discretion.
By accessing the Driver Platform, you agree to the following conditions:
- You will not accept orders offered through the Driver Platform that you do not intend to deliver or pick up.
- You will not disclose, and will maintain the strict confidentiality of, the Customers Data and transaction logs available through the Driver Platform.
- You will not access the Driver Platform or related services using a third-party’s account/registration, or attempt to impersonate another person, particularly any Delivery Courier.
- You will not falsely report your geographic location or prevent or otherwise attempt to prevent the Driver Platform from accurately reporting your geographic location.
- You will not attempt, through any means, to gain unauthorized access to any part of the Driver Platform and/or any related service, or any other account, computer system and/or network connected to any XPEDE server.
- You will not attempt to deceive, mislead, confuse, or defraud XPEDE through any means of circumvention related to the Driver Platform or the Services you are purporting to provide.
- You will not decompile or reverse-engineer the Driver Platform and/or monitor any portion of the Driver Platform and/or any Materials and/or other content on the Driver Platform, unless an authorized representative of XPEDE has given you specific permission to do so in writing.
- You will not conduct any kind of systematic retrieval of data or other content from the Driver Platform.
- You will not create or compile, directly or indirectly, any collection, compilation, database or directory from the Driver Platform’s content.
- You will not use the Driver Platform in any manner that could damage, disable, overburden and/or impair any XPEDE server, or the network(s) connected to any XPEDE server, and/or interfere with any other Delivery Courier’s use of the Driver Platform.
- You will not use any information obtained from the Driver Platform or the XPEDE services (apart from authorized use of XPEDE services) in order to contact, solicit, or buy or sell any products or services to anyone, including but not limited to any Customers, Businesses or another Delivery Courier.
- You will not copy or republish any content, including, but not limited to Customers Data and transaction logs.
- You will not license, sell and/or otherwise provide access to and/or use of your Account or the Driver Platform to any third party (other than subcontractors, pursuant to your Courier Agreement), including without limitation to build a competitive product and/or service.
- You will not harass, annoy, intimidate or threaten any XPEDE employees or agents engaged in providing any portion of XPEDE’s services.
- You will not contact any Customers or Businesses beyond what is necessary to fulfill your delivery services, unless the Customers(s) or Business(s) expressly consents to such contact.
- You will not delete the copyright or other proprietary rights notice from any Materials or any portion of the Driver Platform or XPEDE’s services.
- You will not upload or transmit viruses or other harmful, disruptive or destructive files.
- You will not disrupt, interfere with, or otherwise harm or violate the security of the Driver Platform, or any services, system resources, accounts, passwords, servers or networks connected to or accessible through the Driver Platform or affiliated or linked sites (including those of our business partners).
- You will not use the Driver Platform for any illegal purposes.
You agree that the consequences of commercial use or re-publication of Customers Data or related materials from the Driver Platform or other violations of the foregoing proscriptions may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy. Therefore, you agree that XPEDE will be entitled to temporary and permanent injunctive relief to prohibit such use or activity, without the need to prove damages.
Text Messaging and Telephone Calls
You agree that XPEDE, its subsidiaries, representatives, affiliates, officers and directors, may contact you by telephone or text messages (including by an automatic telephone dialing system and/or with an artificial or pre-recorded voice) at any of the phone numbers provided by you or on your behalf in connection with an XPEDE account, including for marketing purposes. You understand that you are not required to provide this consent as a condition of purchasing any property, goods or services. You also understand that you may opt out of receiving text messages from XPEDE at any time, either by replying “STOP”, texting the word "STOP" to the mobile device that is receiving the messages, or by contacting firstname.lastname@example.org. If you do not choose to opt out, XPEDE may contact you as outlined in its User Privacy Notice, located at https://xpede.net/web/privacy-policy.
You agree that XPEDE may contact you using any of the phone numbers you provided in connection with an XPEDE account (including via text or voice-recorded message) or your email address in the case of suspected fraud or unlawful activity.
Quality of Services by Independent Third Party Providers
XPEDE’s customers expect a high quality experience in using the Platform. As an Independent Third Party Providers with XPEDE, you agree to maintain a certain level of quality of service in order to continue using the Platform and having access to XPEDE’s network of customers. XPEDE reserves the right to deactivate your access to the Driver Platform if your service falls below the industry standard for like services in your region, as determined by XPEDE in its good faith discretion. This includes, but is not limited to:
- Indicating that you have delivered an order or orders when you have not.
- Unreasonably or without good cause for cancelling or otherwise failing to complete an order or orders that you accepted.
- Activities that result in repeated and/or serious complaint(s) from customers and/or businesses who contact XPEDE to report your delivery services as incomplete, unsafe, unprofessional, or otherwise in violation of XPEDE’s standards or harmful to XPEDE’s reputation.
Your access to the Driver Platform may be deactivated if XPEDE determines in its good faith, reasonable discretion that you have materially violated these quality of service standards.
User Provided Content
XPEDE may provide you with interactive opportunities through the Services, including, by way of example, the ability to post User ratings and reviews (collectively, “User Content”). You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit through the Services. You further represent and warrant that any User Content that you submit, post and/or otherwise transmit through the Services (i) does not violate any third-party right, including any copyright, trademark, patent, trade secret, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) does not contain material that is false, intentionally misleading, or defamatory; (iii) does not contain any material that is unlawful; (iv) does not violate any law or regulation; and (v) does not violate this Agreement. You hereby grant XPEDE a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with XPEDE’s business and in all forms now known or hereafter invented (“Uses”), without notification to and/or approval by you. You further grant XPEDE a license to use your username, first name and last initial, and/or other User profile information, including without limitation, your ratings history, to attribute User Content to you in connection with such Uses, without notification or approval by you. You agree that this license includes the right for other Users to access and use your User Content in conjunction with participation in the Services and as permitted through the functionality of the Services. In the interest of clarity, the license granted to XPEDE herein shall survive termination of the Services or your account. XPEDE reserves the right in its sole discretion to remove or disable access to any User Content from the Services, suspend or terminate your account at any time, or pursue any other remedy or relief available under equity or law if you post any User Content that violates this Agreement or any community or content guidelines we may publish or that we consider to be objectionable for any reason. You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by XPEDE in its sole discretion, whether or not such material may be protected by law. You agree that XPEDE may monitor and/or delete your User Content (but does not assume the obligation) for any reason in XPEDE’s sole discretion. XPEDE may also access, read, preserve, and disclose any information as XPEDE reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process, or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security, or technical issues, (d) respond to User support requests, or (e) protect the rights, property or safety of XPEDE, its Users and the public.
As XPEDE respects your rights to your ideas, please do not submit any confidential ideas, information, or suggestions in any form to XPEDE or any of its affiliates. For any ideas, information, or suggestions you do submit, regardless of what your communication regarding your submissions says, you understand that your submissions are voluntary and the following terms shall apply to your submissions: (i) your submissions and their contents will automatically become the property of XPEDE, without any compensation to you; (ii) XPEDE has no obligation to review your submissions; (iii) XPEDE may implement and distribute any portion of your submissions and their contents for any purpose in any way, without any compensation to you; and (iv) XPEDE has no obligation to keep your submissions confidential.
Ratings and Reviews
To the extent that you are asked to rate and post reviews of Third Party Providers (“Ratings” and “Reviews”), such Ratings and Reviews are considered User Content and are governed by this Agreement. Ratings and Reviews are not endorsed by XPEDE and do not represent the views of XPEDE or its affiliates. XPEDE shall have no liability for Ratings and Reviews or for any claims for economic loss resulting from such Ratings and Reviews. Because we strive to maintain a high level of integrity with respect to Ratings and Reviews posted or otherwise made available through the Services, you agree that: (i) you will base any Rating or Review on first-hand experience with the Third Party Providers; (ii) you will not provide a Rating or Review for any Third Party Providers for which you have an ownership interest, employment relationship or other affiliation or for any of that company’s competitors; (iii) you will not submit a Rating or Review in exchange for payment, free food items, or other benefits from the Third Party Providers; (iv) any Rating or Review you submit will comply with the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising; and (v) your Rating or Review will comply with the terms of this Agreement. If we determine, in our sole discretion, that any Rating or Review could diminish the integrity of the Ratings and Reviews or otherwise violates this Agreement, we may remove such User Content without notice.
Network Access and Devices
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. XPEDE does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
By creating a XPEDE account, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by emailing XPEDE at email@example.com. with “Cancel Electronic Consent” in the subject line. To view and retain a copy of this disclosure, you will need (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, email XPEDE at firstname.lastname@example.org. with contact information and your mailing address.
Intellectual Property Ownership
XPEDE alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Platform and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Platform or the Services, or any intellectual property rights owned by XPEDE. XPEDE names, XPEDE logos, and the product names associated with the Platform and Services are trademarks of XPEDE or third parties, and no right or license is granted to use them. You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform or the Services.
You understand that use of the Services may result in charges to you for the services or goods you receive ("Charges"). XPEDE will enable your payment of the applicable Charges for services or goods obtained through your use of the Services. Charges will include applicable taxes where required by law. Charges may include other applicable fees, product return fees, cancellation fees, estimated or actual tolls, and/or surcharges. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand or due to other marketplace factors.
All Charges and payments will be enabled by XPEDE using the preferred payment method designated in your Account, after which you will receive a receipt that you can view and/or download via Adobe pdf. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that XPEDE may use a secondary payment method in your Account, if available. Charges paid by you are final and non-refundable, unless otherwise determined by XPEDE.
With respect to Third Party Providers, Charges you incur will be owed directly to Third Party Providers, and XPEDE will collect payment of those charges from you, on the Third Party Provider’s behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as payment made directly by you to the Third Party Provider. In such cases, you retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods, and Charges you incur will be owed to the Third Party Provider. XPEDE will consider in good faith any request from a Third Party Provider to modify the Charges for a particular service or good. This payment structure is intended to fully compensate a Third Party Provider, if applicable, for the services or goods obtained in connection with your use of the Services. Except for amounts provided by you through the Application as part of the “tip” feature, XPEDE does not designate any portion of your payment as a tip or gratuity to a Third Party Provider. You understand and agree that, while you are free to provide additional payment as a gratuity to any Third Party Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so. There also may be certain Charges you incur that will be owed and paid directly to XPEDE or its affiliates. For the avoidance of doubt, XPEDE does not charge a fee for a user to access the XPEDE Platform, but retains the right to charge users a fee or any other Charge for accessing Services made available through the Platform.
You may elect to cancel your request for Services at any time prior to the commencement of such Services, in which case you may be charged a cancellation fee on a Third Party Provider’s behalf if the cancellation is made within certain unreasonable time. Charges paid by you for completed and delivered orders are final and non-refundable. XPEDE has no obligation to provide refunds or credits, but may grant them, in each case in XPEDE’s sole discretion.
For Third Party Providers, please refer to the Independent Contractor Agreement here.
XPEDE Subscription: General:
XPEDE has an automatically renewing subscription requiring recurring payments for businesses. An XPEDE subscription grants you access to reduced fees on orders placed through the Services for eligible businesses with a minimum subtotal as stated when you sign up (excluding taxes and tips, if applicable) (“Reduced Fees”). XPEDE reserves the right to change whether a business is eligible for the XPEDE subscription at any time with or without notice. Depending on the conditions as stated when you sign up, Service Fees and other fees may apply. We reserve the right to add and modify fees as discussed in this Section. XPEDE Subscription is offered for a monthly or yearly fee payable at the start of the relevant period. By signing up for XPEDE Subscription and providing XPEDE with your payment account information, you agree that: (a) you will be charged your first XPEDE subscription fee and any applicable taxes on the date you purchase your XPEDE subscription; (b) you authorize XPEDE and its service providers to store your payment method for the purpose of executing future XPEDE auto-renewal transactions; (c) UNLESS YOU CANCEL, BY DEFAULT (AND WITH PRIOR NOTICE ONLY TO THE EXTENT REQUIRED BY APPLICABLE LAW), YOUR XPEDE SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF THE THEN-CURRENT SUBSCRIPTION PERIOD, and (d) AT THE TIME OF RENEWAL, XPEDE WILL AUTOMATICALLY CHARGE THE THEN-CURRENT XPEDE SUBSCRIPTION FEE AND ANY APPLICABLE TAXES TO AN ELIGIBLE PAYMENT METHOD THAT WE HAVE ON FILE FOR YOU. If your payment details change, your card provider may provide us with updated card details. We may use these new details or details from other cards on file in order to help prevent any interruption to your XPEDE subscription. If you would like to use a different payment method or if there is a change in payment method, please update your billing information.
Trial or Promotional Subscriptions:
You can cancel your XPEDE subscription at any time through the Services. Cancellation of Subscription can be made through your XPEDE business account. You must cancel at least one (1) day before the next-scheduled subscription renewal date to avoid being charged for the next subscription period (e.g., if renewal date is January 2, you must cancel by 11:59:59 pm PT on January 1). If you participated in a free trial or other promotional subscription period for XPEDE, you may cancel within the first 48 hours of your paid XPEDE subscription and receive a full refund of your XPEDE fee (as applicable).
For both monthly and/or annual subscribers, if you cancel your XPEDE subscription within the first 48 hours and have not placed a XPEDE-eligible order during that period, XPEDE may, in its sole discretion, refund your XPEDE fee. If you cancel your XPEDE subscription at any other time, you will not receive a refund, but you can continue to enjoy the Reduced Fees and other XPEDE benefits through the end of your then-current subscription period.
If you think a correction should be made to any Charge you incurred, you must let XPEDE know in writing within 30 days after the Charge took place or XPEDE will have no further responsibility and you waive your right to later dispute the amounts charged.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH XPEDEAND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 5 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against XPEDE on an individual basis in arbitration as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against XPEDE, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against XPEDE by someone else. For the avoidance of doubt, this precludes you from bringing or participating in any kind of any class, collective, coordinated, consolidated, representative or other kind of group, multi-plaintiff or joint action against XPEDE.
Agreement to Binding Arbitration Between You and XPEDE
Except as expressly provided below in Section 5(b), you and XPEDE agree that any dispute, claim or controversy in any way arising out of or relating to (i) these Terms and prior versions of these Terms, or the existence, breach, termination, enforcement, interpretation, scope, waiver, or validity thereof, (ii) your access to or use of the Services at any time, (iii) incidents or accidents resulting in personal injury that you allege occurred in connection with your use of the Services, whether the dispute, claim or controversy occurred or accrued before or after the date you agreed to the Terms, or (iv) your relationship with XPEDE, will be settled by binding arbitration between you and XPEDE, and not in a court of law. This Agreement survives after your relationship with XPEDE ends.
You acknowledge and agree that you and XPEDE are each waiving the right to a trial by jury or to bring or to participate as a plaintiff or class member in any class, purported class, collective, coordinated, consolidated, or representative proceeding.
This Arbitration Agreement shall be binding upon, and shall include any claims brought by or against any third-parties, including but not limited to your spouses, heirs, third-party beneficiaries and assigns, where their underlying claims are in relation to your use of the Services. To the extent that any third-party beneficiary to this agreement brings claims against the Parties; those claims shall also be subject to this Arbitration Agreement.
Exceptions to Arbitration
Notwithstanding the foregoing, this Arbitration Agreement shall not require arbitration of the following claims: (i) individual claims brought in small claims court so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; (ii) individual claims of sexual assault or sexual harassment occurring in connection with your use of the Services; and/or (iii) XPEDE or individual requests for injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Such claims may be brought and litigated in a court of competent jurisdiction by you on an individual basis only. On an individual basis means that you cannot bring such claims as a class, coordinated, consolidated, collective, or representative action against XPEDE. For the avoidance of doubt, this precludes you from bringing claims as or participating in any kind of any class, collective, coordinated, consolidated, representative or other kind of group, multi-plaintiff or joint action against XPEDE and no action brought by you may be consolidated or joined in any fashion with any other proceeding. Where your claims are brought and litigated to completion on such an individual basis in a court of competent jurisdiction, XPEDE agrees to honor your election.
The parties’ agreement not to require arbitration in these limited instances does not waive the enforceability of this Arbitration Agreement as to any other provision (including, but not limited to, the waivers provided for in Section 5(a), which will continue to apply in court as well as in arbitration), or the enforceability of this Agreement as to any other controversy, claim or dispute.
Rules and Governing Law
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator ("Arbitrator"), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are applicable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. If there is a dispute about whether this Arbitration Agreement can be enforced or applies to a dispute, you and XPEDE agree that the arbitrator will decide that issue.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. §1 et seq. ("FAA"), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties to be bound by the provisions of the FAA for all purposes, including, but not limited to, interpretation, implementation, enforcement, and administration of this Arbitration Agreement, and that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue regarding the interpretation or enforcement of this Arbitration Agreement, then that issue shall be resolved under the laws of the state where you reside when you accept these Terms.
Any dispute, claim, or controversy arising out of or relating to incidents or accidents resulting in personal injury (including but not limited to sexual assault or harassment claims) that you allege occurred in connection with your use of the Services, whether before or after the date you agreed to the Terms, shall be governed by and construed in accordance with the laws of the state in which the incident or accident occurred.
Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and XPEDE each agree to notify the other party in writing of any dispute and to attempt to negotiate an informal resolution. Notice of the dispute must include the party’s name, preferred contact information, a brief description of the dispute, and the relief sought. Notice to XPEDE must be sent to XPEDE, Inc., Attn: Legal Department, 11752 Garden Grove Boulevard, Suite 123, Garden Grove, CA 92843. Neither party shall initiate arbitration until 30 days after the notice is sent. Engaging in this pre-arbitration dispute resolution and notification process is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal resolution process required by this paragraph.
Initiating Arbitration. In order to initiate arbitration, a party must provide the other party with a written Demand for Arbitration and file the Demand with AAA as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). A party initiating an arbitration against XPEDE must send the written Demand for Arbitration to XPEDE, Inc., Attn: Legal Department, 11752 Garden Grove Boulevard, Suite 123, Garden Grove, CA 92843, or serve the Demand on XPEDE’s registered agent for service of process, c/o XPEDE, Inc. (the name and current contact information for the registered agent in each state are available online). The Arbitrator will be either (1) a retired judge or (2) an attorney licensed to practice law in the state where the arbitration is conducted. The Arbitrator will be selected by the parties from the AAA's National Roster of Arbitrators. If the parties are unable to agree upon an Arbitrator after a good faith meet and confer effort, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
Location and Procedure
Unless you and XPEDE otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and XPEDE submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
To increase efficiency of resolution, in the event 100 or more similar arbitration demands against XPEDE, presented by or with the assistance of the same law firm or organization, are submitted to an arbitration provider selected in accordance with the rules described above within a 30-day period, the arbitration provider shall (i) group the arbitration demands into batches of no more than 100 demands per batch (plus, to the extent there are less than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands); and (ii) provide for resolution of each batch as a single arbitration with one set of filing and administrative fees and one arbitrator assigned per batch. You agree to cooperate in good faith with XPEDE and the arbitration provider to implement such a batch approach to resolution and fees.
The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you may seek an award of attorneys' fees and expenses to the extent permitted under applicable law. XPEDE will not seek, and hereby waives all rights XPEDE may have under applicable law to recover attorneys' fees and expenses if XPEDE prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
No Effect on Independent Contractor Agreement
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND XPEDE RELATING TO YOUR WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR, INCLUDING WITHOUT LIMITATION, ANY INDEPENDENT CONTRACTOR AGREEMENT GOVERNING YOUR SERVICES AS A CONTRACTOR. FOR THE AVOIDANCE OF DOUBT, IF YOU ARE A CONTRACTOR, OPTING-OUT OF THE ARBITRATION AGREEMENT SET FORTH IN THIS SECTION 12 HAS NO EFFECT ON YOUR AGREEMENT TO ARBITRATE DISPUTES COVERED BY YOUR INDEPENDENT CONTRACTOR AGREEMENT WITH XPEDE.
Severability and Survival
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
Notwithstanding any provision in the Agreement to the contrary, we agree that if XPEDE makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to XPEDE.
Disclaimers; Limitation of Liability; Indemnity
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." XPEDE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, XPEDE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
XPEDE DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
XPEDE DOES NOT CONTROL, MANAGE OR DIRECT ANY THIRD PARTY PROVIDERS INCLUDING DRIVERS. THIRD PARTY PROVIDERS ARE NOT ACTUAL AGENTS, APPARENT AGENTS, OSTENSIBLE AGENTS, OR EMPLOYEES OF XPEDE.
XPEDE DOES NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY USER CONTENT OR THIRD PARTY CONTENT AVAILABLE ON OR LINKED TO BY THE SERVICES. XPEDE CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Limitation of Liability
XPEDE SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF XPEDE, EVEN IF XPEDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
XPEDE SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF XPEDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. XPEDE SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND XPEDE'S REASONABLE CONTROL. THE SERVICES MAY BE USED BY YOU TO REQUEST DELIVERY OR PICK UP OF PACKAGES/PARCELS AND/OR ENVELOPES, AND/ OR LOGISTICS SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT XPEDE HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO SUCH SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, XPEDE’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON XPEDE’S CHOICE OF LAW PROVISION SET FORTH BELOW.
You agree to indemnify and hold harmless XPEDE and its officers, directors, employees, agents, affiliates and Third Party Providers (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation, attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your User Content; (b) your misuse of the Platform or Services; (c) your breach of this Agreement or any representation, warranty or covenant in this Agreement; or (d) your violation of any applicable laws, rules or regulations through or related to the use of the Platform or Services. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this Section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys’ fees incurred by the Indemnified Party. XPEDE reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with XPEDE in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform or Services. You agree that the provisions in this section will survive any termination of your account, this Agreement, or your access to the Platform and/or Services.
Choice of Law
These Terms shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without regard to the choice or conflict of law principles of any jurisdiction, except as may be otherwise provided in the Arbitration Agreement in Section 5 above or in supplemental terms applicable to your region. This Choice of Law provision applies only to the interpretation of these Terms and is not intended to create any other substantive right to non-Californians to assert claims under California law or bring claims in California courts whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 5 of these Terms, are only intended to specify the use of California law to interpret these Terms, and these provisions shall not be interpreted as generally extending California law to you if you do not otherwise reside in California.
Any dispute, claim, or controversy arising out of or relating to incidents or accidents resulting in personal injury (including but not limited to sexual assault or harassment claims) that you allege occurred in connection with your use of the Services, whether before or after the date you agreed to the Terms, shall be governed by and construed in accordance with the laws of the state in which the incident or accident occurred.
Choice of Forum
Any dispute, claim or controversy arising out of or relating to these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, shall be brought exclusively in the state and federal courts of California, notwithstanding that other courts may have jurisdiction over the parties and subject matter, except as may be otherwise provided by the Arbitration Agreement above or in supplemental terms applicable to your region.
Notwithstanding the foregoing, any dispute, claim, or controversy arising out of or relating to incidents or accidents resulting in personal injury (including but not limited to sexual assault or harassment claims) that you allege occurred in connection with your use of the Services, whether before or after the date you agreed to the Terms, shall be brought exclusively in the state and federal courts in the State in which the incident or accident occurred, notwithstanding that other courts may have jurisdiction over the parties and subject matter, and except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms applicable to your region, to the extent permitted by law.
The foregoing Choice of Law and Choice of Forum provisions do not apply to the Arbitration Agreement in Section 5, and we refer you to Section 5 for the applicable provisions for such disputes.
Procedure for Making Claims of Copyright Infringement
It is XPEDE’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to XPEDE by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for XPEDE’s Copyright Agent for notice of claims of copyright infringement is as follows: Legal Department, XPEDE, Inc., 11752 Garden Grove Boulevard, Suite 123, Garden Grove, CA 92843.
If you violate this Agreement, XPEDE may respond based on a number of factors including, but not limited to, the egregiousness of your actions and whether a pattern of harmful behavior exists.
In addition, at its sole discretion, XPEDE may modify or discontinue the Platform or Service, or may modify, suspend or terminate your access to the Platform or the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Platform or the Service, XPEDE reserves the right to take appropriate legal action, including without limitation, pursuing civil, criminal or injunctive redress. Even after your right to use the Platform or the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.
No Joint Venture or Couriership
No joint venture, Couriership, employment, or agency relationship exists between you, XPEDE or any third-party provider as a result of this Agreement or use of the Platform or Services.
In accordance with California Civil Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Accessing and Downloading the Application from Apple App Store
The following applies to any Platform accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”):
- You acknowledge and agree that (i) the Agreement is concluded between you and XPEDE only, and not Apple, and (ii) XPEDE, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App Store Sourced Application to you and to the fullest extent permitted by law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between XPEDE and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of XPEDE.
- You and XPEDE acknowledge that, as between XPEDE and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and XPEDE acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between XPEDE and Apple, XPEDE, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
- Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
XPEDE may give notice by means of a general notice on or through the Services, electronic mail to the email address associated with your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or at the time of sending (if sent by email, telephone, or on or through the Services). Where XPEDE requires that you provide an e-mail address, you are responsible for providing XPEDE with your most current e-mail address. In the event that the last e-mail address you provided to XPEDE is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, XPEDE’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to XPEDE, with such notice deemed given when received by XPEDE, at any time by first class mail or pre-paid post to XPEDE, Inc., Attn: Legal Department, 11752 Garden Grove Boulevard, Suite 123, Garden Grove, CA 92843. If another provision of these Terms addresses any specific notice (for example, notice of updates to these Terms, or notice of a dispute or arbitration demand), those specific notice provisions shall prevail to the extent there is any conflict or inconsistency between those provisions and this notice provision.
For contractual purposes, you (1) consent to receive communications from XPEDE in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that XPEDE provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. You agree to keep your contact information, including email address, current. This subparagraph does not affect your statutory rights.
Transfer and Assignment
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by XPEDE without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Agreement binds and inures to the benefit of each party and the party’s successors and permitted assigns.
This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. However, nothing in this Agreement shall supersede, amend, or modify the terms of any separate agreement(s) between you and XPEDE relating to your work as an employee or independent contractor, including, without limitation, any Independent Contractor Agreement governing your efforts as a Contractor.