Xipster.com, including all of its related applications, dashboards, or platforms (individually and collectively, the “Website”), is owned and operated by VenueVision Corporation. (“VenueVision,” “we,”“us,” or “our”). By using, installing, or accessing the Website or Services (as defined below), by signing or clicking to accept these terms or any Subscription Documentation (as defined below) referencing these terms, you agree to be bound by the following terms and conditions, including Xipster’s Privacy Policy (together, these “Terms”, or this “Agreement”).
If you are using a Xipster Service on behalf of a company, organization, or other entity, then “Client” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Client is an entity, this Agreement is entered into by an employee, agent, or other authorized representative with all necessary authority to bind that entity to this Agreement.
This Agreement includes and hereby incorporates by reference any Subscription Documentation executed between you and Xipster, as well as any policies or exhibits linked to or referenced herein. If you have entered into a separate written agreement with Xipster concerning specific Services, the terms of such agreement control if there is any conflict between the terms of such agreement and these Terms. Please note that we may modify this Agreement as described in Section 16.10 below.
1.1 “Business Associate Agreement” (hereinafter “BAA”) means a written agreement between a covered entity and a business associate containing the elements specified at 45 CFR 164.504(e).
1.2 “Confidential Information” means code, inventions, know-how, product plans, technical and financial, business, operational, or other information exchanged under this Agreement or learned during the performance of this Agreement, or that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
1.3 “Law(s)” means all applicable local, provincial, federal, and international laws, rules, and regulations, or amendments thereto, including but not limited to the CAN-SPAM Act, Do Not Call rules and prohibitions, and Canada’s Anti-Spam Legislation (“CASL”), the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, and the Gramm-Leach-Bliley Act of 1999.
1.4 “Territory” means Canada and the United States, unless otherwise expressly set forth in Client’s Subscription Documentation. Other terms are defined in other Sections of this Agreement.
2.1 Services. Xipster provides a proprietary multi-product platform that includes without limitation messaging and communication tools (“Texting,” “Chat,” “Estimates” and “Campaigns”), payment processing and related services (“Payments”), certain Free Access Subscription or Beta Releases (as defined below), and any other services Xipster may offer from time to time (together with the Website, the “Service(s)”). Client will, from time to time, enter into a proposal, quote, services/purchase agreement, order form, statement of work, or otherwise click to accept or agree to an online registration form, which references this Agreement (“Subscription Documentation”) and details the Services ordered from Xipster and, if applicable, the usage limits or other scope of use descriptions for the Services (including without limitation any costs associated, usage or volume limits, numerical limits on Authorized Users, and descriptions of product feature levels) (the “Scope of Use”). Client may be provided the option to purchase certain Services as part of a package or bundle or promotional offer (each, a “Package”), as detailed in the applicable Subscription Documentation. The Services included in Xipster’s Packages are currently specified at https://www.xipster.com/pricing/. Xipster has no obligation to provide any services or perform any tasks not specifically set forth in this Agreement, including any applicable Subscription Documentation.
2.2 Alteration of Subscription Documentation. Any amendments or modifications to any existing Subscription Documentation must be agreed to in writing by the parties. Xipster has no obligation to perform any Services under any amended Subscription Documentation until the parties have agreed to the effect of such changes on the applicable Fees.
2.3 Modification of the Services. Xipster reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), or to alter the offering of the Services (including by adding, limiting, or discontinuing certain Bundle offers, promotional offers) temporarily or permanently. Xipster also reserves the right to replace certain Services and Packages with functionally equivalent Services or Packages, at its sole discretion. In the event Xipster makes any modification or alteration to the Services or the offering thereof that has a material adverse effect on the functionality of the Services ordered under your Subscription Documentation, Client may terminate this Agreement and receive a pro-rated refund of pre-paid unused Fees for the remainder of Client’s Subscription Term (as defined below).
2.4 Additional Terms. Client’s subscription to or use of certain Services may be subject to additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to from these Terms or the Services (the “Additional Terms”). To the extent applicable, all Additional Terms are incorporated by this reference into, and made a part of, these Terms. If Client purchases or otherwise uses any of the following Services, Client’s use is subject to and Client accepts the applicable Additional Terms, as set forth below.
2.4.1. Xipster Payments. If Client uses Xipster Payments, Client agrees to be bound by the Xipster Payments Service Terms.
3.1 Use of Services. Subject to all terms and conditions of this Agreement, including any Additional Terms, Xipster grants Client a non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license during the applicable Subscription Term and within the Territory (to the extent available in the Territory) to: (a) install and use an object code copy of any mobile application associated with the Services; and (b) access and use the Services, designated on Client’s Subscription Documentation solely for Client’s internal business purposes, but only in accordance with this Agreement, Xipster’s Acceptable Use Policy (“Acceptable Use Policy”), the applicable Subscription Documentation, and all applicable Scope of Use descriptions. Although the Services may be accessible worldwide, Xipster makes no representation that the Services are appropriate or available for use in locations outside the Territory (or that all products or features of the Services are available throughout the Territory). Furthermore, accessing the Services from territories where their content or use is illegal, is prohibited under this Agreement. Those who choose to access the Services from other locations do so at their own initiative and are responsible for compliance with local laws and any costs associated with access or use outside the Territory. You may not use or export the Services in violation of U.S. export laws and regulations.
3.2 Account Registration. Client must register for a Xipster account in order to access or receive the Services. Account information must be accurate, current, and complete, and will be governed by Xipster’s Privacy Policy as may be amended from time to time. Client agrees to keep its account information up to date so that Xipster may send notices, statements, and other information by email or through Client’s account. By using or accessing the Website, Client agrees and consents to Xipster’s use of cookies in accordance with the terms of Xipster’s Privacy Policy. Client is solely responsible for all use of its Services account(s). Xipster will not be liable for any loss or damage arising from unauthorized use of Client’s account(s).
3.3 Eligibility and Use by Others. By agreeing to these Terms, Client warrants that it and its employees, agents, contractors, and any other users (including but not limited to Developer Partners or Third-Party Providers) whom Client has authorized to access the Services on its behalf (“Authorized Users”): (a) are over 18 years old; (b) have not previously been suspended or removed from the Services; and (c) will comply with all Laws when using the Services. Client may permit its Authorized Users to use the Services provided their use is for Client’s benefit only and remains in compliance with this Agreement. Authorized Users are and will be subject to the applicable terms and conditions of this Agreement, which may be communicated by posting to the Website or on a click-through basis to Authorized Users upon access to the Services and/or Website.
3.4 Responsibility for Authorized Users. Client will be responsible and liable for all Authorized Users’ use and access and their compliance with this Agreement. Client will be solely responsible for authorizing and creating user IDs, passwords, and other access credentials for Authorized Users. Client is solely responsible for determining its Authorized Users, monitoring their usage to ensure compliance with their terms and restricting and/or terminating the rights of such users during the Subscription Term, as Client deems appropriate. Provided, however, Xipster may, in its sole discretion, suspend any Authorized User’s access to the Services. Client is solely responsible for ensuring that any user IDs, passwords, and other access credentials (such as API tokens) for the Services are kept strictly confidential and not shared with any unauthorized person. Additionally, Client is solely responsible for complying, and ensuring its Authorized Users comply, with all Laws applicable to Client. Client will be solely responsible for any and all actions taken using its and its Authorized Users’ accounts, passwords, or access credentials. Client must notify Xipster within twenty-four (24) hours of any breach of security or unauthorized use of its account. Use by all Authorized Users in aggregate will count towards any applicable Scope of Use restrictions.
3.5 Use by Customers. Any person that is a client, customer, or patient of Client, or that is a potential client, customer, or patient of Client (“Customer(s)”) who accesses and/or uses the Services, including via Client’s account or website, are subject to the Acceptable Use Policy and such other terms as may be provided by Xipster from time to time, which includes Xipster’s right to remove or disable access to any Customer or content or resource that violates the Acceptable Use Policy.
3.6 General Restrictions. Client must not (and must not allow any third party to): (a) rent, lease, copy, transfer, sublicense, or provide access to the Xipster Technology (as defined below) to a third party (except Authorized Users as specifically authorized above); (b) incorporate the Xipster Technology (or any portion thereof) into, or use it with or to provide, any site, product, or service; (c) use the Xipster Technology (or any portion thereof) for time-sharing purposes or for a third party’s benefit; (d) publicly disseminate information regarding the performance of the Xipster Technology (which is deemed Xipster’s Confidential Information); (e) modify or create a derivative work of the Xipster Technology or any portion thereof; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Xipster Technology or Services, except to the extent expressly permitted by applicable Law and then only upon advance notice to Xipster; (g) break or circumvent any security measures or rate limits for Services; (h) distribute any portion of the Xipster Technology other than as specifically permitted above; (i) use the Services in violation of the Acceptable Use Policy; or (j) remove or obscure any proprietary or other notices contained in the Xipster Technology including in any reports or output obtained from the Xipster Technology.
3.7 Beta Releases and Free Access Subscriptions. Subject to Client’s compliance with the terms of this Agreement, Xipster may provide Client with certain Services for free or on a trial basis (a “Free Access Subscription”) or with “alpha”, “beta”, or other early-stage Services, integrations, or features (“Beta Releases”) for the Subscription Term set forth in the applicable Subscription Documentation (if applicable). This Section 3.7 and any relevant Additional Terms will apply to any Free Access Subscription or Beta Release (even if a Beta Release is provided for a fee or counts towards Client’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. For the avoidance of doubt, Section 6 (Availability of Services; Support) will not apply to any Free Access Subscription or Beta Release. Xipster may use good faith efforts in its discretion to assist Client with Free Access Subscriptions or Beta Releases. Without limiting the other disclaimers and limitations in this Agreement, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, CLIENT AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH XIPSTER WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CLIENT’S SOLE RISK. You may choose to use Free Access Subscriptions and Beta Releases at your sole discretion. Xipster makes no guarantees or promises with respect to the continued availability of any Free Access Subscriptions or Beta Releases or that future versions of a Free Access Subscription or Beta Release will be released or will be available under the same commercial or other terms. Xipster may discontinue Beta Releases at any time, in our sole discretion, and decide not to make any Beta Releases generally available. Notwithstanding anything to the contrary herein, Xipster may terminate Client’s right to use any Free Access Subscription or Beta Release at any time for any reason or no reason in Xipster’s sole discretion, without liability.
3.8 Free Trial Subscription. Subject to Client’s compliance with the terms of this Agreement, Xipster may provide Client with certain Services for free or on a trial basis (“Free Trial”) for the Subscription Term set forth in the applicable Subscription Documentation (if available). This Section 3.8 and any relevant Additional Terms will apply to any Free Trial Subscription and supersedes any contrary provision in this Agreement. Section 6 (Availability of Services; Support) will not apply to any Free Trial Subscription. Xipster may use good faith efforts in its discretion to assist Client with Free Trial Subscriptions. Without limiting the other disclaimers and limitations in this Agreement, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, CLIENT AGREES THAT ANY FREE TRIAL SUBSCRIPTION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. ACCORDINGLY, ANY USE OF A FREE TRIAL IS AT CLIENT’S SOLE RISK. You may choose to use Free Trial Subscriptions at your sole discretion. Xipster makes no guarantees or promises with respect to the continued availability of any Free Trial Subscriptions or that future versions of a Free Trial Subscription will be released or will be available under the same commercial or other terms. Notwithstanding anything to the contrary herein, Xipster may terminate Client’s right to use any Free Trial Subscription at any time for any reason or no reason in Xipster’s sole discretion, without liability. Any Client can only register once for one (1) Free Trial Subscription. If there is a set time limit to the Free Trial Subscription and Client cancels the Free Trial Subscription prior to the end of the Subscription trial time limit, it is considered a full Free Trial Subscription term and will be considered one (1) full term for their Free Trial Subscription. The Client authorizes for their Credit Card to be stored on file when completing the registration for a Free Trial Subscription. The Client authorizes for a $0.01 verification charge to be applied to their Credit Card to complete the registration for a Free Trial Subscription. The Client is aware the $0.01 verification charge will be refunded to the Credit Card used in the registration process after the verification has been completed with the Credit Card processing provider. The Client is aware that the Free Trial Subscription will automatically convert to a paid Xipster Essentials monthly Subscription as per the time outlined during the registration process and in their Subscription Documentation for the trial period, unless the Client has canceled or upgraded their Free Trial Subscription before the end of the Free Trial Subscription time. The Client is aware if their Free Trial Subscription has come to an end, and they have not canceled or upgraded their plan to a different Xipster paid monthly or annual subscription, they will be charged the current rate for the lowest base Xipster plan. The Client is aware the fee for the plan conversion to the Monthly base Essentials plan will be applied automatically to the credit card on file taken during the free trial registration process, and is aware that there is no refund provided for the charge of the Monthly base Essentials plan when the Free Trial automatically converts at the end of the posted Free Trial Subscription period. The Client is aware they can cancel their Subscription at any time, but there will be no refund for any unused portion of the Subscription period. All Subscription terms, whether annual or monthly are charged in full and paid at time of registration, any cancellation will prevent the Subscription from continuing past the paid Subscription period.
3.9 Monthly Add-ons. Subject to Client’s compliance with the terms of this Agreement, Xipster may provide Client with certain Services as paid monthly add-ons. Client is aware that these monthly add-ons are billed automatically to the credit card on file at the time of registration and are billed month to month. Client is aware that initial charges for any paid monthly add-ons will be pro-rated based on time of subscription and either collected at time of plan subscription or when purchased as an add-on after original plan subscription, and will be automatically charged to the credit card on file. The Client is aware that any monthly add-on has an additional minimum one (1) full month commitment after time of subscription and are unable to cancel the add-on service until that full month subscription has passed. The Client is aware that canceling any monthly add-on subscription before the end of the calendar month, will not provide any refund for any unused amount. Add-ons are charged for the full month at the beginning of each month and charged automatically to the credit card on file.
4.1 Rights in Client Data. As between the parties, Client retains all right, title, and interest (including any intellectual property rights) in and to any text, images, or other content and data that Client selects or submits for use or incorporation with the Services (including without limitation, chat and message logs, Customer Data, or any Third-Party Content) (“Client Data”). “Customer Data” means data related to the identity, characteristics, and activities of Customers, collected or submitted to the Services by Client or captured by the Services. “Third-Party Content” means content, data, or other materials that Client provides to the Xipster Services from its third-party data providers, including through Third-Party Products (as defined below) used by Client. Client hereby grants Xipster a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Client Data solely to the extent necessary to provide the Services and related services to Client and as otherwise provided herein. Client further instructs Xipster to use and disclose Client Data and Customer Data as necessary to (a) provide the Services consistent with this Agreement and Xipster’s Privacy Policy, including detecting, investigating, and preventing security incidents, spam, fraud, or unlawful use of the Services, and (b) respond to Client’s inquiries or any technical problems and ensure the Services are working properly.
4.2 Aggregate/Anonymous Data. Client agrees that Xipster will have the right to generate usage data from Client use of the Services and may aggregate anonymized Client Data (“Aggregate/Anonymous Data”). Notwithstanding anything to the contrary herein, the parties agree that Aggregate/Anonymous Data is Xipster Technology, which Xipster may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Xipster’s products and services and to create and distribute reports and other materials). Xipster will not distribute Aggregate/Anonymous Data in a manner that personally identifies Client or its Customers, or that would otherwise violate applicable Laws. If Client and Xipster have entered into a BAA, Xipster will use the Aggregate/Anonymous Data only in conformity with the terms of such agreement.
4.3 Monitoring. Client understands and agrees that Xipster may monitor and analyze Client Data or Customer Data (including but not limited to reviews, surveys, messages, chats, etc.) to improve the Website or Services; to improve Client’s experience using the Website or Services; to customize and communicate informational or product offerings and promotions to Client; to ensure compliance with the Acceptable Use Policy (including taking corrective action permitted therein); and/or to make the Website or Services more helpful or useful to Client and other users. Client also understands that any third-party platform(s) or Third-Party Provider(s) Client elects to use or access in conjunction with the Services may also monitor and analyze the Client Data and/or Customer Data Client uses or accesses in connection with such third-party platforms, to customize and communicate information or product offerings and promotions to Client; to ensure compliance with applicable terms of use; and to make such third-party platform(s) more helpful or useful to Client and other users.
4.4 Security. Xipster agrees to maintain physical, technical, and organizational measures designed, in its discretion, to secure its systems from unauthorized access, use, or disclosure. Xipster takes no responsibility and assumes no liability for any Client Data other than its express security obligations in this Section 4.4.
4.5 Storage. Xipster does not provide an archiving service. During the Subscription Term, Client acknowledges that Xipster may delete Client Data no longer in active use. Except for requirements that are included in any BAA entered into between Xipster and Client, Xipster expressly disclaims all other obligations with respect to storage.
5.1 Warranty. Client warrants and represents that it will use the Services in full compliance with all Laws and terms of this Agreement, including the Acceptable Use Policy, and that it will not use the Services in a manner that would cause Xipster to violate any obligation with respect to any such Laws. Client also warrants and represents that: (a) Client has sole ownership of any Client Data it provides to Xipster, or otherwise has legal rights to provide such Client Data, and Client Data and Xipster’s use thereof will not violate third-party rights, including intellectual property, privacy, and publicity rights; (b) Xipster’s possession and/or use of the Client Data on Client’s behalf in connection with the Services, as contemplated hereunder, will not violate any contract, statute, or regulation; (c) any Client Data Client and/or Client’s authorized representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, and will only concern Client or the goods and/or services that Client provides; (d) Client is authorized to provide Xipster with any Customer, Client, or Authorized User information it provides in connection with the Services, including any personally identifying information; and (e) Client and/or Client’s Authorized User(s) will only use the Services for interaction with actual Customers. If Client receives any take-down requests or infringement notices related to Client Data or its use of Third-Party Products, it will promptly stop using these items with the Services and notify Xipster immediately. Additionally, if an integration is included in the Services Client orders, Client grants Xipster the right to access Client’s Data or Client’s CRM system directly or through a third-party service for the purposes of fulfilling Xipster’s obligations under this Agreement, and Client warrants that Client is not restricted by law or applicable agreement from granting Xipster such right. Xipster will not be held liable for any consequences of false and/or inaccurate content published to an online review or ratings website through Xipster by Client or its Authorized Users.
5.2 Customer Consent; Intended Use of the Services. Client understands and agrees that the Services are intended to allow Client to send electronic communication, including but not limited to text messages, only to Client’s own current Customers who have consented to the receipt of such communications and are provided with necessary notices in accordance with applicable Laws. Client also understands and agrees that the Services are intended primarily to be used to send transactional and/or informational messages, not advertisements, marketing, telemarketing, or promotional messages, as such are defined in applicable Laws (hereinafter, collectively “Marketing”), and that Client may use the Services to send Marketing messages only via Xipster Campaigns. Accordingly, Client will for the duration of the Subscription Term: (a) provide all required disclosures to Customers and obtain all required consents and/or authorizations from Customers, based on applicable Laws, prior to utilizing the Services; (b) obtain all necessary rights, releases, and consents to allow Client Data to be collected, used, and disclosed in the manner contemplated by this Agreement and to grant Xipster the rights herein; and (c) send Marketing messages through Xipster only via Xipster Campaigns and only in compliance with all Laws, the terms of this Agreement, including the Acceptable Use Policy, and industry- specific best practices, including but not limited to Do Not Call rules and prohibitions. Client agrees and acknowledges that Client is solely responsible for its compliance with applicable Laws and the Acceptable Use Policy and must not rely on the Services for any such compliance. Use of the Services does not guarantee compliance with applicable Laws or the Acceptable Use Policy, and Xipster expressly disclaims any liability for Client’s non-compliance. Xipster reserves the right to suspend or terminate Client’s access to the Services or specific feature(s) of the Services if Xipster believes, in its sole discretion, that Client has violated this Section 5.
6.1 Availability. Subject to the terms of this Agreement and any scheduled maintenance and unavailability caused by: (a) actions or omissions of Client; (b) failures, errors, or defects in the facilities, hardware, software, or network of Client; or (c) circumstances that constitute a force majeure event or that are beyond Xipster’s reasonable control, the Services will be available for access via the Website 99.0% of the time during of the applicable Subscription Term. Client’s sole remedy and Xipster’s sole liability for failure to meet the aforementioned availability will be support in accordance with Section 6.2.
6.2 Support. Xipster makes available web-based support through the Website. Additional support services may be available to Client subject to payment of applicable fees (if any), as specified in any applicable Subscription Documentation. Any support services are subject to this Agreement and Xipster’s applicable support policies, if any. Client is primarily responsible for its own account setup and onboarding. Xipster may also provide onboarding, deployment, and other services under this Agreement, including via Third-Party Providers or subcontractors. If applicable, the scope, pricing, and other terms for these additional services will be set forth in the applicable Subscription Documentation. Xipster’s ability to deliver the Services will depend on Client’s reasonable and timely cooperation and the accuracy and completeness of any information from Client needed to deliver the Services.
7.1 Fees. Unless otherwise specified on the applicable Subscription Documentation, the Services are provided on an ongoing, per-license subscription-basis including automatically recurring payments for periodic charges, according to the terms and conditions referenced in the Subscription Documentation (“Subscription”). Client agrees to pay to Xipster the fees for the Subscription to the Services or any Bundle (“Subscription Fees”) and any additional fees (if applicable), all as set forth in the applicable Subscription Documentation or Additional Terms (collectively, the “Fees”). Except as otherwise specified in the applicable Subscription Documentation, unless Client terminates a Free Access Subscription prior to the lapse of the Free Access Subscription Term, such Services will convert to a paid Subscription and Client agrees to pay Xipster the applicable Subscription Fees according to the terms of this Agreement. Unless otherwise specified in the applicable Subscription Documentation, payment for all Fees is automatically charged to the credit card registered on file at the time of the subscription registration.
7.2 Payment of Fees. Unless otherwise specified in the applicable Subscription Documentation, all Annual Subscription Fees will be charged annually in advance to the credit card on file, and all Monthly Subscription Fees, Monthly add-on Services and monthly usage fees will be charged monthly in advance to the credit card on file, and all references to currency set forth herein will mean Canadian dollars (CDN), with all payments hereunder to be made in Canadian dollars. Subscription Fees are non-refundable and non- creditable, except as expressly set forth in Sections 2.3 (Modification of the Services) and 8.3 (Termination for Cause). Payments for the applicable Subscription Documentation is required by credit card and the Client authorizes Xipster to charge the Subscription Fees automatically, on an auto-renew basis on your Subscription Start Date (as defined below) for each subsequent Subscription Term, as well as any Monthy Add-On Services and all Monthly usage fees (texting, payment links). For the avoidance of doubt, all additional Subscription Fees for additional Services accessed by Client will be billed when the Service is first accessed by Client and automatically, on an auto-renew basis month to month. The Subscription will continue unless and until you or Xipster terminate your Subscription in accordance with Section 8. You must cancel your Subscription before it renews in order to avoid billing the next periodic Subscription Fees to your account. The Client must ensure that their account has a sufficient positive balance to cover all Fees when due. Should Xipster be unable to process/receive the Fees when due and owing, payment shall be considered overdue. Xipster will have the right to charge interest on all overdue amounts equal to the maximum amounts allowed by applicable Law. Additionally, after payment becomes overdue, Xipster will have the right to immediately suspend Client’s access to the Services and/or seek to enforce Client’s payment obligations including through the use of third-party services.
7.3 Taxes. Xipster’s Fees are exclusive of all taxes and regulatory fees, and Client must pay any applicable taxes regulatory fees, or levies, whether domestic or foreign, other than taxes based on the income of Xipster. Client will make tax and regulatory fee payments to Xipster to the extent amounts are included on Xipster’s invoices.
7.4 Fee Increase. Xipster reserves the right to determine the applicable Fees for any Services. While Xipster will make reasonable efforts to keep the information relating to Fees published on its Website up to date, you should check the Website periodically for information about current Fees. If any Fees are specified on your Subscription Documentation, Xipster may increase Fees applicable to you upon forty-five (45) days’ prior written notice, effective on the start date of your subsequent Subscription Term. Additionally, notwithstanding the foregoing, Xipster may adjust the Payments Services Fees as set forth in the Payments Service Terms. Xipster may also, from time to time and in its sole discretion, make promotional offers or different Fees available to its clients or other users. Such promotional offers will not apply to you or this Agreement unless specified in writing in your Subscription Documentation.
8.1 Term. This Agreement is effective until the applicable Subscription Term for the Services has expired or the Subscription is terminated as expressly permitted herein. Unless otherwise stated in Client’s Subscription Documentation, the initial term for any Annual Subscription to the Services is twelve (12) months and any Monthly Susbscription is based on each calendar month, and will automatically renew for subsequent periods of equal duration (the “Subscription Term”), unless either party gives written notice of non-renewal at least one (1) month before the end of the then-current Subscription Term. Client may give notice of non-renewal by sending an email to [email protected]. If no Subscription start date is specified on the applicable Subscription Documentation, the Subscription starts when Client first obtains access to the Services (“Subscription Start Date”). By agreeing to any Subscription Documentation, Client is agreeing to pay applicable fees for the entire Subscription Term. Client cannot cancel or terminate a Subscription Term except as expressly permitted by this Section 8.1 or Section 8.3 (Termination for Cause). Unless Client’s Subscription Documentation expressly states otherwise, any additional Services purchased during Client’s Subscription Term will be coterminous with Client’s most recent Xipster platform Subscription Term.
8.2 Suspension of Services. Xipster may suspend Client’s (or any Authorized User’s, as applicable) access to the Services if: (a) Client’s account is overdue, or (b) Client has exceeded its Scope of Use limits. Xipster may also suspend Client’s (or any Authorized User’s, as applicable) access to the Services, remove Client Data, or disable Third-Party Products if it determines that: (i) Client has breached Sections 3 (Use Rights; Restrictions) or 5 (Client Obligations); or (ii) suspension is necessary to prevent harm or liability to other clients of Xipster or third parties or to preserve the security, stability, availability, or integrity of the Services. Xipster will have no liability for taking action as permitted above. For avoidance of doubt, Client will remain responsible for payment of Fees during any suspension period. Unless this Agreement has been terminated, Xipster will cooperate with Client to restore access to the Services once it verifies that Client has resolved the condition requiring suspension.
8.3 Termination for Cause. Either party may terminate this Agreement, including any related Subscription Documentation, if the other party: (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). If Client terminates during the Subscription Term for any reason other than the foregoing, Client will be responsible for the Fees due for the entire Subscription Term. Xipster may also terminate this Agreement or any related Subscription Documentation immediately if Client breaches Sections 3 (Use Rights; Restrictions) or 5 (Client Obligations), for repeated violations of other Sections of this Agreement, or if applicable, a breach of the parties’ BAA.
8.4 Effect of Termination. Upon any expiration or termination of this Agreement or any Subscription Documentation: (a) Client’s license rights will terminate and it must immediately cease use of the Services (including any related Xipster Technology) and delete (or, at Xipster’s request, return) any and all copies of any Xipster documentation, scripts, passwords or access codes, and any other Xipster Confidential Information in Client’s possession, custody, or control; and (b) Client’s right to access any Client Data in the applicable Services will cease, and unless otherwise precluded by a BAA, Xipster may delete any such data in its possession at any time. If Xipster terminates this Agreement for cause as provided in Section 8.3 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Client. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
8.5 Survival. The following Sections survive any expiration or termination of this Agreement: 1 (Definitions); 3 (Use Rights; Restrictions); 4 (Client Data); 7 (Fees and Payment); 8 (Term and Termination); 9 (Confidential Information); 10 (Xipster Technology); 11 (Third-Party Providers and Third-Party Products); 12 (Indemnification); 13 (Disclaimers); 14 (Limitations of Liability); 15 (Dispute Resolution); and 16 (General).
9.1 Obligation of Confidentiality. Except as otherwise expressly permitted in this Agreement, each party (as the receiving party) must: (a) hold in confidence and not disclose the other party’s Confidential Information to third parties; and (b) use the other party’s Confidential Information only as necessary to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its employees, agents, contractors, subcontractors, or Authorized Users having a legitimate need to know (which, for Xipster, includes the subcontractors referenced in Section 16.6), provided that such party remains responsible for any recipient’s compliance with the terms of this Section 9 and these recipients are bound to confidentiality obligations no less protective than this Section.
9.2 Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (a) is or becomes public knowledge through no fault of the receiving party; (b) was known by the receiving party prior to receipt of the Confidential Information; (c) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (d) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law, subpoenas, or court orders, provided it uses commercially reasonable efforts to notify the other party where permitted to do so) and cooperates in any effort by the other party to obtain confidential treatment for the information.
9.3 Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
10.1 Ownership and Updates. By accepting this Agreement, Client acknowledges that it is obtaining only a limited right to use the Services and irrespective of any use of the words “purchase”, “sale”, or similar terms, no ownership rights are transferred to Client under this Agreement and, except as expressly permitted by such limited right, Client may not make any use of Xipster Technology. Client agrees that Xipster (or its suppliers) exclusively retains all rights, title, and interest (including all intellectual property rights) in and to all Services, products, any and all related documentation, software, technology, code, know-how, logos, trademarks, service marks, and templates (including in any reports or output obtained from the Services), anything delivered as part of support, materials or other services, and any updates, modifications, or derivative works of any of the foregoing, including as may incorporate any Feedback (as defined below) (“Xipster Technology”) provided by Xipster (which is deemed Xipster’s Confidential Information) and reserves any licenses not specifically granted herein. Furthermore, Xipster exclusively owns and reserves all right, title, and interest in and to Xipster’s Confidential Information and any data, in anonymized or aggregated form that does not identify you, any end users, or any natural person, generated or derived from the use or operation of the Services, including volumes, frequencies, bounce rates, and performance results for the Services. The Services are offered as an online, hosted product. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software behind any Services and that Xipster at its option may make updates, bug fixes, modifications, or improvements to the Services from time-to-time.
10.2 Feedback. If Client elects to provide any suggestions, comments, improvements, information, ideas, or other feedback or related materials to Xipster (collectively, “Feedback”), Client hereby grants Xipster a worldwide, perpetual, non-revocable, sublicensable, royalty-free right, and license to use, copy, disclose, license, distribute, and exploit any such Feedback in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits Xipster’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
Xipster may, from time to time, contract with a third party to facilitate certain features of the Services, including as described in Section 16.6 of this Agreement. Xipster may also allow or facilitate Client to make arrangements with other third-party providers that provide products or services in connection with, but which are not included in, the Services as described in this Agreement (“Third-Party Provider(s)”). If Client elects to use any Third-Party Provider(s) or any applications, integrations, add-ons, software, code, online services, systems, and other products that are not Xipster Technology (“Third-Party Products”) in connection with the Services, such Third-Party Provider(s) or Third-Party Products may make Third-Party Content available to Client and may access Client’s instance of the Services, including Client Data. Client agrees and acknowledges that use of such Third-Party Provider(s) or Third-Party Products may require Client to enter into separate terms and conditions with such third-party. Unless Xipster expressly agrees otherwise in a signed writing, Xipster (a) is not a party to any such terms; (b) will not be liable thereunder; (c) does not warrant or support Third-Party Providers, Third-Party Products; or Third-Party Content; and (d) disclaims all responsibility and liability for these providers and items and their access to the Services, including their modification, deletion, disclosure, or collection of Client Data. Xipster is not responsible in any way for Client Data once it is transmitted, copied, or removed from the Services.
12.1 Indemnification by Client. Client will indemnify and hold harmless Xipster and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (together, the “Xipster Entities”) from and against any third-party claims and related costs, damages, liabilities, and expenses (including reasonable attorney’s fees) arising from or pertaining to: (a) your unauthorized use of, or misuse of, the Services, including but not limited to the Xipster Marketplace and Xipster API, as applicable; (b) your violation of, any claim that you have violated, any applicable Law or third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (c) any dispute or issue between you and any third party (including but not limited to your Customers, any Developer Partners, and any Third-Party Providers); (d) any demand, dispute, or issue (including without limitation fee disputes) between you and any Payment Service Provider(s) (as defined in the applicable Additional Terms); (e) any Client Data; (f) Xipster’s use, as contemplated in this Agreement, of any information provided to Xipster by you or your Customers; (g) breach or alleged breach of this Agreement, including Client’s warranties and obligations; or (h) if applicable, alleged breach or breach of Client’s obligations contained in the BAA. Client also agrees to defend the Xipster Entities against these claims at Xipster’s request, but Xipster may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. In the event Xipster assumes exclusive defense of such claims, Client agrees to cooperate with our defense of any such claims. Client may not settle any claim without Xipster’s prior written consent if the settlement does not fully release Xipster from liability or would require Xipster to admit fault, pay any amounts, or take or refrain from taking any action.
12.2 Indemnification by Xipster. Xipster will indemnify and hold Client harmless from and against any third-party claims and related costs, damages, liabilities, and expenses (including reasonable attorney’s fees) arising from or pertaining to (a) Xipster’s gross negligence or willful misconduct; or (b) Xipster’s infringement, misappropriation, or violation of a third party’s intellectual property rights. Xipster also agrees to defend Client against these claims at Client’s request, but Client may participate in any claim through counsel of its own choosing and the Parties will reasonably cooperate on any defense. Xipster must not settle any claim without Client’s prior written consent if the settlement does not fully release Client from liability or would require Client to admit fault, pay any amounts, or take or refrain from taking any action.
12.3 Exclusions to Xipster’s Indemnification. Xipster will not be required to indemnify Client in the event of: (a) modification of the Services by Client, its Authorized Users, Developer Partners, Third-Party Providers, affiliates, employees, or contractors in conflict with Client’s obligations or as a result of any prohibited activity under this Agreement, (b) use of the Services in a manner inconsistent with this Agreement, the Acceptable Use Policy, the Additional Terms, the Subscription Documentation, or any other agreement related to this Agreement, or (c) use of the Services in combination with any other application, product, or service not provided by Xipster if such claim would not have occurred without such combination.
13.1 EXCEPT AS PROVIDED EXPRESSLY HEREIN, ALL XIPSTER TECHNOLOGY AND RELATED SERVICES, MATERIALS, AND CONTENT AVAILABLE THROUGH THE XIPSTER TECHNOLOGY ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER XIPSTER NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. XIPSTER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT XIPSTER TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT CLIENT DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT XIPSTER TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, AND XIPSTER DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. XIPSTER WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT PROPERTIES, THIRD-PARTY PROVIDERS, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-XIPSTER SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, USE, AND DISCLOSURE OF CLIENT DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON XIPSTER TECHNOLOGY OR XIPSTER’S RELATED SERVICES (INCLUDING CHANGES TO CLIENT PROPERTIES). THE DISCLAIMERS IN THIS SECTION 13 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
13.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR XIPSTER ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE XIPSTER ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. XIPSTER DOES NOT PROVIDE ITS CLIENTS WITH LEGAL ADVICE REGARDING DATA PRIVACY OR COMPLIANCE WITH RELEVANT LAW IN ANY JURISDICTION, AND ANY STATEMENTS MADE BY XIPSTER TO ITS CLIENT(S) DO NOT CONSTITUTE LEGAL ADVICE. USE OF THE SERVICES DOES NOT GUARANTEE COMPLIANCE WITH APPLICABLE LAWS IN ANY JURISDICTION.
15.1 Mediation. The parties agree to participate in mediation to settle their Claims in accordance with the rules and procedures found in Oakville, Ontario, and this Agreement before a party can file a judicial action, whether in a court of law, an administrative body, government agency, or otherwise. If there are any conflicting provisions between the Ontario Court of Law, and this Agreement, the provisions in this Agreement will govern.
15.1.1. Notice. Mediation must be conducted within sixty (60) days from a party receiving written notice of Claims from a complaining party. The notice must contain a detailed description of the nature of the Claims and the requested relief sought.
15.1.2. Mediator Selection and Mediator Fees. A neutral mediator will be selected as mutually agreed upon by the parties. The mediator’s fees and costs will be paid to the mediator at the end of mediation, with both parties equally sharing the mediation costs and paying their own legal fees and costs.
15.1.3. Location. Mediation will occur in Oakville, Ontario.
15.2 Judicial Action. If the parties are unable to resolve the Claim pursuant to the mandatory mediation referenced above (or if one of the parties refuses to participate in the mandatory mediation or fails to respond to a complaining party’s request for mediation), the parties may subsequently file a judicial action.
15.3 Disputes Not Subject to the Mediation Process. The following claims or actions are not subject to the mandatory mediation provisions of this Section 15:
15.3.1. A request for an order of injunctive relief and any related incidental damages;
15.3.2. A request for an order to prevent the disclosure of or misuse of Confidential Information or trade secrets; and/or
15.3.3. Enforcement of Client’s payment obligations as set forth under Section 7. 16. GENERAL.
16.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Xipster may assign this Agreement without consent to an affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.
16.2 Notices. Any notice or communication to Xipster under this Agreement must be in writing. Client must send any notices under this Agreement (including breach notices) to Xipster Headquarters (include “Attn. Legal Department” in the subject line) or by email to [email protected]. Xipster may send notices to the e-mail addresses on Client’s account or, at Xipster’s option, to Client’s last-known postal address. Xipster may also provide operational notices regarding the Services or other business-related notices through conspicuous posting of such notice on Xipster’s Website or the Services. Each party hereby consents to receipt of electronic notices and agrees that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. Xipster is not responsible for any automatic filtering Client or its network provider may apply to email notifications.
16.3 Publicity. Unless otherwise specified in the applicable Subscription Documentation, Xipster may use Client’s name, logo, and marks to identify Client as a Xipster Client on Xipster’s website and other marketing materials.
16.4 Xipster Communication with Client. You agree that Xipster may send you emails and text messages, including transactional, operational, and marketing messages, possibly using automated technology, to the email or phone number you provide to Xipster. Message and/or data rates may apply to such messages, and you may opt out at any time. You will keep your contact information up to date and will notify Xipster immediately in the event that your contact information changes.
16.5 Referral Programs. Xipster may, from time to time, and in its sole discretion, offer referral programs or opportunities to certain Xipster clients or users. Such programs or opportunities may include incentives for such clients or users to promote Xipster and/or its Services to their family or friends. Participation in such programs or opportunities is completely voluntary and is subject to this Agreement and the Xipster Referral Submission Terms (“Referral Submission Terms”). Xipster may modify, discontinue, or terminate any referral program or similar opportunity at any time, without notice.
16.6 Subcontractors. Xipster may use subcontractors and permit them to exercise the rights granted to Xipster in order to provide the Services and related services under this Agreement. Unless Xipster expressly states otherwise in signed writing, Third-Party Providers are not “subcontractors” under this Agreement, and Xipster disclaims all responsibility and liability for the actions or omissions of any Third-Party Providers, including but not limited to Developers.
16.7 Subpoenas. Nothing in this Agreement prevents Xipster from disclosing Client Data to the extent required by law, subpoenas, or court orders, but Xipster will use commercially reasonable efforts to notify Client where permitted to do so.
16.8 Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
16.9 Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, disruption in transportation systems, disruption of labor force, national or state emergency, epidemic, pandemic, communicable disease outbreak, failure or reduction of power or telecommunications or data networks or services, or government act or order.
16.10 Amendments; Waivers. Xipster may update or modify these Terms (including the Additional Terms and any referenced policies and other documents) from time to time by posting a revised version on the Website or Services or by notification via the email associated with your account. If a change to these Terms materially modifies your rights or obligations, you may be required to click through the updated Terms to show acceptance and to continue to use the Services. Material modifications are effective upon the earlier of your acceptance of the modified Terms or upon your next subsequent Subscription Term. Immaterial modifications will become effective upon posting or notification, and continued use of the Services or Website, following the update, will constitute acceptance of the updated Terms. If Client does not agree to the updated Terms, Client will no longer have the right to use the Services. Except as otherwise described in this Section 16.10, any modification or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party (each in its discretion). No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. No waiver of any provision of this Agreement will constitute a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement will not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision. Waivers must be made in writing and executed by a duly authorized representative of the waiving party.
16.11 Headings. The headings used in this Agreement are for ease of reference only. They are not intended as a complete re-statement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.
16.12 Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect, and all other provisions remain in full effect.
16.13 No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Client acknowledges that each Subscription only permits use by and for the legal entity or entities identified in the Subscription Documentation and not any affiliates. Furthermore, Client’s affiliates are not permitted to use the Services under these Terms unless an affiliate agrees to these Terms individually and creates its own account.
16.14 Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.
16.15 Entire Agreement. This Agreement, including these Terms and any applicable Subscription Documentation, represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Xipster Technology or any other subject matter covered by this Agreement. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted. Any terms provided by Client (including as part of any purchase order or other business form used by Client) are for administrative purposes only and have no legal effect.
16.16 Counterparts; Electronic Transmission. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one and the same instrument. A facsimile or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery will be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile or other reproduction hereof.
16.18 Notice Regarding Apple. This Section 16.19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Xipster only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Services. If the Services fail to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (a) product liability claims; (b) any claim that the Services fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third- party claim that the Services and/or your possession and use of the Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Services. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Xipster Technology developed by VenueVision Corporation. (“Xipster”, “we”, and/or “us”) values your privacy. This privacy policy (“Privacy Policy”) describes the types of information we may collect from any individual or entity, including, but not limited to, Clients, Customers, Authorized Users, and end users (“you”), who accesses or uses Xipster.com, including all of its related applications, dashboards, or platforms (“Services”) and our practices for collecting, using, maintaining, protecting, and disclosing that information. By using our Services, you agree to the collection, use, disclosure, and procedures this Privacy Policy describes. Beyond the Privacy Policy, your use of our Services is also subject to our Terms of Service and our Acceptable Use Policy. All capitalized terms not defined in this Privacy Policy have the same meaning given in our Terms of Service.
This Privacy Policy applies to information we collect:
Through the Services. In email, text, and other electronic messages between you and the Services. Through mobile and desktop applications you download from the Services or a third-party app store, which provide dedicated non-browser-based interaction between you and the Services.
When you interact with our advertising and applications on third-party websites and services, if those applications or advertising include links to this policy. This Privacy Policy does not apply to information collected by us offline. Please read this policy carefully to understand our policies and practices regarding your information and how we will treat it. If you do not agree with our policies and practices, your choice is not to use our Services. By accessing or using our Services, you agree to this Privacy Policy. This Privacy Policy may change from time to time (see Changes to Our Privacy Policy). Your continued use of the Services after we make changes is deemed to be acceptance of those changes, so please check the policy periodically for updates. If you do not provide your information when requested, you may not be able to use our Services if that information is necessary to provide you with our Services or if we
are legally required to collect it.
INFORMATION WE COLLECT ABOUT YOU AND HOW WE COLLECT IT
1.1 What we collect. We collect several types of information from and about users of our Services, including information (note that if you do not want us to have access to information, you should not share it):
1.1.1. Personal information, by which you may be personally identified, such as name, postal address, e-mail address, telephone number;
1.1.2. That is about you but individually does not identify you;
1.1.3. If you share it through our Services, including with another user of our Services, Personally Identifiable Information;
1.1.4. Information necessary to make financial transactions, such as your billing address, other addresses related to you, and credit card or other payment information; and/or
1.1.5. About your internet connection, the equipment you use to access our Services, and usage details.
1.2 How we collect this information
1.2.1. Directly from you when you provide it to us.
1.2.2. Automatically as you use our Services. Information collected automatically may include usage details, IP addresses, and information collected through cookies, web beacons, and other tracking technologies.
1.2.3. From third parties, for example, our business partners or from publicly available sources such as certain third-party review sites.
1.3 Information You Provide to Us. The information we collect through our Services may include:
1.3.1. Registration and Profile Information. Information that you provide by filling in forms through our Services. This includes information provided at the time of registering to use our Services, subscribing to our Services, signing up to receive information about our Services, posting material, or requesting further services. We may also ask you for information when you enter a contest or promotion sponsored by us, and when you report a problem with our Services. If you sign up for an account, register to use our Services, purchase our products, or sign up to receive information about our Services, we may ask you for your, or your customer’s, first and last name, e-mail address, phone number, physical address, P.O. box or other postal address, login information, and any other information we collect.
1.3.2. Communications with Xipster. Information when you contact us directly such as records and copies of your correspondence (including email addresses), as well as communications with other parties as you use the Services. For example, when you contact our Customer Support Team, we will receive your name, mobile phone number, the contents of a message, and any other information you choose to provide.
1.3.3. Communications Using the Services with Others. You also may provide information to others through the Services and your communications may be transmitted to other users of the Services or third parties (collectively, “User Contributions”). Any User Contributions you post or transmit to others is done at your own risk. We cannot always control the actions of other users of the Services, or a third party outside the Services, with whom you may choose to share your User Contributions.
1.3.4. Survey Information. Your responses to surveys that we might ask you to complete for research purposes such as customer success and marketing strategy.
1.3.5. Payment information. When you add billing information or a credit card number to your account or make a purchase (e.g., through our Payments products), we will use a third- party service provider to collect and store your payment information.
1.3.6. Search Information. Your search queries on the Services.
1.3.7. Images. We collect any images that you submit to our Services.
1.3.8. Audio and Voice. We collect audio through the Services, such as voice recordings that may be transcribed by us or a third party.
1.4 Information We Collect Through Automatic Data Collection Technologies. The information we collect automatically may include personal information. As you navigate through and interact with our Services, we may use automatic data collection technologies to collect certain information about your equipment, browsing actions, and patterns, including:
1.4.1. Usage Information. Details of your use of our Services, including traffic data, location data, logs, and other communication data and the resources that you access and use through the Services. To help us understand how you use our Services and to help us improve them, we automatically receive information about your interactions with our Services, such as the ads you click on, pages or other content you view, the searches you conduct, purchases you make, your comments, and the dates and times of your visits.
1.4.2. Location Information. When you use our Services, if you allow us, we will receive your precise location information. We also infer your more general location information (for example, your internet protocol (IP) address may indicate your more general geographic region.
1.4.3. Device Information. We receive information about the device and software you use to access our Services, including IP address, web browser type, operating system version, phone carrier and manufacturer, application installations, device identifiers, other equipment identifiers, mobile advertising identifiers, and push notification tokens.
1.4.4. Information from Cookies and Similar Technologies. We and third-party partners collect information using cookies, pixel tags, or similar technologies. Our third-party partners, such as analytics and advertising partners, may use these technologies to collect information about your online activities over time and across different services.
1.4.5. Webhook Information. Other sites/users may integrate Xipster’s webhooks. When you visit a site with a Xipster webhook embedded, we may receive certain information about you, including information about the web page you visited, your IP address, and other information about your device. Xipster and the webhook can recognize you across websites containing Xipster’s webhooks, and the webhook may be used to show personalized content or advertising. We know when you interact with a webhook, and websites containing the webhooks may receive this information.
1.4.6. Text Information. We may facilitate text messages between you and your customers. In the process, we may receive information about these communications, such as the date and time of the SMS message, the parties’ phone numbers, and the content of any SMS messages.
1.4.7. Profile Information. Inferences drawn from any of the information above to create a profile about you that may reflect, for example, your preferences, characteristics, and behavior, including for account security purposes or to enhance our Services to you.
1.4.8. Profile Information. Inferences drawn from any of the information above to create a profile about you that may reflect, for example, your preferences, characteristics, and behavior, including for account security purposes or to enhance our Services to you.
1.4.9. Information you provide to Third Parties. If you choose to link our Services to a third-party account, we may receive information about you, including your profile information, photo, and use of the third-party account. Additionally, we may receive information about you from third parties such as data or marketing partners and combine it with other information we have about you.
We also may use these technologies to collect information about your online activities over time and across third-party websites or other online services (behavioral tracking).
1.5 Methods for Automatic Data Collection. The technologies we use for automatic data collection may include:
1.5.1. Cookies (or browser cookies). A cookie is a small text file containing a string of alphanumeric characters placed on the hard drive of your computer. We may use both session cookies and persistent cookies. A session cookie disappears after you close your browser. A persistent cookie remains after you close your browser and may be used by your browser on subsequent visits to our Services. (Please review your web browser’s “Help” file to learn the proper way to modify your cookie settings. Please note that if you delete or choose not to accept cookies from the Service, you may not be able to utilize the features of the Services to their fullest potential.) You may refuse to accept browser cookies by activating the appropriate setting on your browser. However, if you select this setting you may be unable to access certain parts of our Services. Unless you have adjusted your browser setting so that it will refuse cookies, our system will issue cookies when you direct your browser to our Services.
1.5.2. Flash Cookies. Certain features of our Services may use local stored objects (or Flash cookies) to collect and store information about your preferences and navigation to, from, and on our Services. Flash cookies are not managed by the same browser settings as are used for browser cookies.
1.5.3. Web Beacons. Our Services and our e-mails may contain small electronic files known as web beacons (also referred to as clear gifs, pixel tags, and single-pixel gifs) that permit us, for example, to count users who have visited those pages or opened an email and for other related website statistics (for example, recording the popularity of certain website content and verifying system and server integrity).
We may not always collect personal information automatically, but we may tie this information to personal information about you that provide to us or that we collect from other sources.
2. THIRD-PARTY USE OF COOKIES AND OTHER TRACKING TECHNOLOGIES
Some content or applications, including advertisements, on the Services are served by third-parties, including advertisers, ad networks and servers, content providers, and application providers. These third parties may use cookies alone or in conjunction with web beacons or other tracking technologies to collect information about you when you use our Services. The information they collect may be associated with your personal information or they may collect information, including personal information, about your online activities over time and across different websites and other online services. They may use this information to provide you with interest-based (behavioral) advertising or other targeted content.
We do not control these third parties’ tracking technologies or how they may be used. If you have any questions about an advertisement or other targeted content, you should contact the responsible provider directly. For information about how you can opt out of receiving targeted advertising from many providers, see Choices About How We Use and Disclose Your Information.
3. HOW WE USE YOUR INFORMATION
We use information that we collect about you or that you provide to us, including any personal information:
3.1 To present our Services and related content to you.
3.2 To personalize and improve your experience on our Services, such as presenting tailored content, speeding up your searched, recognizing when you return to our Services, and storing information about your preferences, allowing us to customize our Services according to your individual interests.
3.3 For marketing purposes, such as customizing and communicating informational or product offerings, promotions, and advertising materials that may be useful, relevant, valuable or otherwise of interest to you. We may also use it to estimate our audience size and usage patterns. If you do not want us to use your information in this way, please contact us as [email protected]. We may use the information we have collected from you to enable us to display advertisements to our advertisers’ target audiences. Even though we do not disclose your personal information for these purposes without your consent, if you click on or otherwise interact with an advertisement, the advertiser may assume that you meet its target criteria.
3.4 To send you text messages and push notifications.
3.5 To provide, maintain, improve, and enhance our Services.
3.6 To provide you with information, products, or services that you request from us.
3.7 To facilitate transactions and payments.
3.8 To provide you with notices about your account or subscription, including expiration and renewal notices.
3.9 To carry out our obligations and enforce our rights arising from any contract(s) entered into between you and us, including for billing and collection.
3.10 To notify you about changes to our Services or any products or services we offer or provide though it.
3.11 To allow you to participate in interactive features on our Services.
3.12 To communicate with you, provide you with updates and other information that you request, respond to comments and questions, and otherwise provide customer support.
3.13 To market additional or new products or services to you.
3.14 To find and prevent fraud and respond to trust and safety issues that may arise.
3.15 To de-identify and aggregate information collected through the Services and use it for any lawful purpose.
3.16 For compliance purposes, including enforcing our Terms of Service or other legal rights, or as may be required by applicable laws and regulations or as requested by any judicial process or governmental agency.
3.17 To fulfill any other purpose for which you provide it.
3.18 In any other way we may describe when you provide the information.
3.19 For any other purpose with your consent. We may also maintain the information we collect or associate it with personal information we collect in other ways or receive from third parties.
We retain your personal information for as long as necessary to achieve the purpose of the collection unless we are required by law to keep it longer.
4. DISCLOSURE OF YOUR INFORMATION
4.1 Aggregate and Anonymous Information. We may disclose aggregated information about our users, and information that does not identify any individual, for any business purpose.
4.2 Personal Information. We may disclose personal information that we collect, or you provide as described in this privacy policy:
4.2.1. Affiliates. We may share any information we receive with our subsidiaries, affiliates, and partners for any of the purposes described in this Privacy Policy.
4.2.2. Vendors and Service Providers. We may share any information we receive with vendors contractors, service providers, and other third parties retained in connection with the provision of our Services or who we use to support our business.
4.2.3. Third Party App Integrations. If you connect a third-party application to our Services, we may share information with that third party.
4.2.4. Analytics Partners. We use web analytics services such as Google Analytics to collect and process certain analytics data. These services may also collect information about your use of other websites, apps, and online resources. You can learn about Google’s practices by going to https://www.google.com/policies/privacy/partners/ and opt-out of them by downloading the Google Analytics opt-out browser add-on, available at https://tools.google.com/dlpage/gaoptout.
4.2.5. Social Networking Platforms and Other Online Services. Our Services allow you to, upon your direction, share information with social networking services, such as Facebook or Instagram. You understand and agree that the use of your information by any social networking websites will be governed by the privacy policies of these third-party platforms and your settings on that platform. We encourage you to review their privacy policies.
4.2.7. Marketing. We may disclose your information to non-affiliated third parties for their direct marketing purposes as well as our direct marketing purposes. If you would like to opt out of such disclosures, please contact us at [email protected]. To third parties to market their products or services to you if you have not opted out of these disclosures.
4.2.8. Other Users. Our Services enable you to, among other things, communicate with others. Your name, username, and other profile information may be viewable and searchable by other users. The content you post to the Services may be displayed on the Services and viewable by other users by default. We are not responsible for the other users’ use of available information, so you should carefully consider whether and what to post or how you identify yourself on the Services.
4.2.9. Sale, Acquisition, Merger or Other Asset Transfers. We may share information to a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of Xipster’s assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which personal information held by Xipster about our users is among the assets transferred.
4.2.10. To Fulfill the Purpose for which You Provide. We may share information at your direction. For example, if you give us an email address or other contact information as a referral, we may use that email address to contact the referred party.
4.2.11. As Disclosed. We may share information for any other purpose disclosed by us when you provide the information.
4.2.12. With Consent. We may share information with your consent.
4.3 Other Possible Disclosures of Personal Information. We may also disclose your personal information:
4.3.1. As Required by Law and Similar Disclosures. In cooperation with governmental authorities and in our sole discretion, we may access, preserve, and disclose information about you if we believe it is necessary or appropriate to: (a) comply with law enforcement requests and legal process, such as in connection with a court order or subpoena; (b) respond to your requests; or (c) if we believe a disclosure of such information is necessary to protect your, our, or other’s property, rights, or safety. For the avoidance of doubt, the disclosure of information about you may occur if you post any objectionable content on or through the Services.
4.3.2. To enforce or apply our Terms of Service, Acceptable Use Policy, and other agreements, including, but not limited to, for billing and collection purposes.
4.3.3. If we believe disclosure is necessary or appropriate to protect the rights, property, or safety of Xipster, our customers, or others. This includes exchanging information with other companies and organizations for the purposes of fraud protection and credit risk reduction.
5. CHOICES ABOUT HOW WE USE AND DISCLOSE YOUR INFORMATION
We strive to provide you with choices regarding the personal information you provide to us. We have created mechanisms to provide you with the following control over your information:
5.1 Communications with Other Users. The Services allow you to communicate with other users. Some of those communications are intended to be public, such as a review that is left on a third-party website. Other communications may be private or intended by you or another user to be private. We cannot always control the actions of other users with whom you communicate through our Services, so you must be aware that communications you intend to be private could be shared publicly by another user with whom you communicate. Furthermore, by communicating with other users, you acknowledge and agree
5.2 Do Not Track. There is no accepted standard on how to respond to Do Not Track signals, and we do not respond to such signals.
5.3 Location Information. You can prevent your device from sharing precise location information at any time through your device’s operating system settings.
5.4 Xipster Marketing Communications. You can unsubscribe from our promotional emails via the link provided in the emails or by sending us an email stating your request to [email protected]. Even if you opt-out of receiving promotional messages from us, you will continue to receive administrative messages from us. For example, if we have sent you a promotional email, you may send us a return email asking to be omitted from future email distributions, but this opt-out will not apply to information provided to Xipster as a result of a product purchase, warranty registration, product service experience or other transactions.
5.5 Disclosure of Your Information for Third-Party Advertising. If you do not want us to share your personal information with unaffiliated or non-agent third parties for promotional purposes, you can opt-out by sending us an email with your request to [email protected].
5.6 Tracking Technologies and Advertising. You can set your browser to refuse all or some browser cookies, or to alert you when cookies are being sent. If you disable or refuse cookies, please note that some parts of our Services may then be inaccessible or not function properly.
5.7 Targeted Advertising. If you do not want us to use information that we collect or that you provide to us to deliver advertisements according to our advertisers’ target-audience preferences, you can opt-out by contacting us at [email protected].
If you choose not to provide us with information we collect, some features of our Services may not work as intended. Our Services may contain links to other websites, products, or services that we do not own or operate. We are not responsible for the privacy practices of these third parties, and we do not control third parties’ collection or use of your information. Please be aware that this Privacy Policy does not apply to your activities on these third-party services or any information you disclose to these third parties. We encourage you to read their privacy policies before providing information to them. These third parties may provide you with ways to choose not to have your information collected or used in this way.
Furthermore, we do not control third parties’ collection or use of your information to serve interest- based advertising. However, these third parties may provide you with ways to choose not to have your information collected or used in this way.
INTERNATIONAL USERS
Our Services are hosted in Canada. If you choose to use the Services from other regions of the world with laws governing data collection and use that may differ from Canadian law, then please note that you are transferring your personal information outside of those regions to Canada for storage and processing. Also, we may transfer your data from Canada to other countries or regions in connection with storage and processing of data, fulfilling your requests, and operating the Services. Your providing of information, including personal information, on or to the Services constitutes your consent to such transfer, storage, and processing.
You have the right to access and correct your personal information, Our Services may already provide you with functionalities to do this, but if these functionalities are not helpful, you can nevertheless exercise these rights.
We will try to help you with your request free of charge. However, we may request that you pay a reasonable fee, such as if you request a transcript or a reproduction by mail. We will only do so if we are authorized by law, and if we notified you before and you’ve accepted the fees. To avoid any fraudulent request and protect your personal information, we may ask that you provide a proof of identity with your request. We will not use such personal information for any other purposes. We will respond to your request within thirty (30) days, unless agreed otherwise. If your request is denied, we will notify you in writing, and provide you with detailed motives and information on how to contest our decision.
The Office of the Privacy Commissioner of Canada drafted this FAQ to help you access your personal information when it is held by a business. You can also contact the Office of the Privacy Commissioner of Canada’s Information Centre:
Telephone, 9:00 am to 4:00 pm
EST Toll-free: 1-800-282-1376
Mailing Address:
Office of the Privacy Commissioner
30 Victoria Street
Gatineau, Québec
K1A 1H3
9. CHILDREN UNDER THE AGE OF 13
Our Website is not intended for children under 13 years of age. No one under age 13 may provide any information through or on the Services. We do not knowingly collect personal information from children under 13. If you are under 13, do not:
9.1 Use or provide any information through or on our Services or through any of its features;
9.2 Register on to use the Services;
9.3 Make any purchases through the Services;
9.4 Use any of the interactive or public comment features of the Services, or;
9.5 Provide any information about yourself to us, including your name, address, telephone number, email address, or any screen name or username you may use.
If we learn we have collected or received personal information from a child under 13 without verification of parental consent, we will delete that information.
10. ACCESSING AND CORRECTING YOUR INFORMATION
You can review and change your personal information by logging into the Services and visiting your account profile page.
You may also send us an email at [email protected] to request access to, correct, or delete any personal information that you have provided to us. If you have a user account with us, we cannot delete all of your personal information except by also deleting your user account. We may not accommodate a request to change or delete information if we believe the change or deletion would violate any law or legal requirement, cause Xipster to violate its rights or legal obligations, or cause the information to be incorrect.
If you delete your User Contributions from the Services, copies of your User Contributions may remain viewable in cached and archived pages or might have been copied or stored by other Services users. Proper access and use of information provided through the Services, including User Contributions, is governed by our Terms of Service.
12. DATA SECURITY
Xipster values the security of your information. We have implemented reasonable security measures that are designed to protect the information we maintain.
The safety and security of your information also depends on you. Where we have given you (or where you have chosen) a password for access to certain features of our Services, you are responsible for keeping this password confidential. We ask you not to share your password with anyone. We urge you to be careful about giving out information when using certain aspects of the services such as the Texting feature. The information you share in public areas may be viewed by other users of the Services.
Unfortunately, the transmission of information via the internet is not completely secure. As our Services are hosted electronically, we can make no guarantees as to the security or privacy of your information. Although we do our best to protect your personal information, we cannot guarantee the security of your personal information transmitted through our Services. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the Website.
13. CHANGES TO OUR PRIVACY POLICY
It is our policy to post any changes we make to our privacy policy on this page. If we make material changes to how we treat our users’ personal information, we will notify you by email to the primary email address specified in your account. The date the privacy policy was last revised is identified at the top of the page. You are responsible for ensuring we have an up-to-date active and deliverable email address for you, and for periodically visiting our Services and this privacy policy to check for any changes.
14. CONTACT INFORMATION
If you have questions about your privacy on the Services or this Privacy Policy, please contact us at: [email protected]
2360 Bristol Circle, Unit 102, Oakville, Ontario, Canada L6H 6M5
This Acceptable Use Policy (the “Policy”) sets out rules applicable to your use of Xipster by VenueVision Corporation (“Xipster”, “we”, “us” or “our”) Services and Xipster Technology, including via our clients’ websites or platforms (the “Services”). The examples described in this Policy are not exhaustive.
This Policy should be read in conjunction with the Xipster Terms of Service (“Xipster Terms of Service”) (currently available at: https://xipster.com/legal/) into which it is incorporated by reference. We may suspend, terminate, or take other interim action regarding your access to or use of the Services, if, in our sole judgment, we believe you, directly or indirectly, violated this Policy or authorize or help others to do so.
We may modify this Policy from time to time by posting a revised version on our website. By using the Services, you agree to the latest version of this Policy. Any capitalized terms not defined in this Policy have the meaning set forth in the Xipster Terms of Service.
General Policies/Requirements. We all expect that the messages and communications we want to send and receive will reach the intended recipient(s), unhindered by filtering or other blockers. An important step you can take to make that expectation a reality is to prevent unwanted communications by only sending messages and communications that comply with applicable laws and communications-industry guidelines/standards. To that end, all communications originating from your use of the Xipster Services and Xipster Technology (including but not limited to SMS, MMS, webchat, Voice, and similar messaging channels available through the Services) are subject to, and must comply with, the Xipster Terms of Service, including this Policy, which sets out certain rules and/or prohibitions regarding: Consent (“opt-in”); Revocation of Consent (“opt-out”); Sender identification; Messaging Usage; Prohibited Content; Filtering Evasion; and Enforcement.
Consent Requirements
Standard Consent Requirements. Prior to sending the first message to an individual, you must obtain agreement from the message recipient to communicate with them – this is referred to as “consent.” You must make clear to the individual they agree to receive messages of the type you’re going to send.
You need to keep a record of the consent, such as a copy of the document or form that the message recipient signed, or a timestamp of when the customer completed a sign-up flow or otherwise provided consent. This record of consent must be retained as set forth by local regulations or best practices after the end user opts out of receiving messages.
If you do not send an initial message to that individual within a reasonable period after receiving consent (or as set forth by local regulations or best practices), then you will need to reconfirm consent in the first message you send to that recipient. The consent applies only to you, and to the specific use that the recipient has consented to. Consent can’t be bought, sold, or exchanged. For example, you can’t obtain the consent of message recipients by purchasing a phone list from another party. You also can’t treat it as blanket consent allowing you to send messages from other brands or companies you may have, or additional messages about other uses for which you haven’t received consent.
Alternative Consent Requirements. While consent is always required and the consent requirements noted above are generally the safest path, there are two scenarios where consent can be received differently.
Contact initiated by an individual
If an individual sends a message to you, you may respond in an exchange with that individual. For example, if an individual texts your phone number asking for your hours of operation, you can respond directly to that individual, relaying your open hours. In such a case, the individual’s inbound message to you constitutes both consent and proof of consent. Remember that the consent is limited only to that particular conversation. Unless you obtain additional consent, don’t send messages that are outside that conversation.
Informational content to an individual based on a prior relationship
You may send a message to an individual where you have a prior relationship, provided that individual provided their phone number to you, and has taken some action to trigger the potential communication, and has not opted out or otherwise expressed a preference to not receive messages from you.
Actions can include a button press, alert setup, appointments, or order placements. Examples of acceptable messages in these scenarios include appointment reminders, receipts, one-time passwords, order/shipping/reservation confirmations, drivers coordinating pick-up locations with riders, and repair persons confirming service call times. The message can’t attempt to promote a product, convince someone to buy something, or advocate for a social cause.
Periodic Messages and Ongoing Consent
If you intend to send messages to a recipient on an ongoing basis, you should confirm the recipient’s consent by offering them a clear reminder of how to unsubscribe from those messages using standard opt-out language (defined below). You must also respect the message recipient’s preferences in terms of frequency of contact. You also need to proactively ask individuals to reconfirm their consent as set forth by local regulations and best practices.
Identifying Yourself as the Sender
Every message you send must clearly identify you (the party that obtained the opt-in from the recipient) as the sender, except in follow-up messages of an ongoing conversation.
Opt-out
The initial message that you send to an individual needs to include the following language: “Reply END to unsubscribe,” or the equivalent using another standard opt- out keyword, such as STOP, STOPALL, UNSUBSCRIBE,, and QUIT.
Individuals must have the ability to revoke consent at any time by replying with a standard opt-out keyword. When an individual opts out, you may deliver one final message to confirm that the opt-out has been processed, but any subsequent messages are not allowed. An individual must once again provide consent before you can send any additional messages.
Prohibited Content
You agree that you will not use the Services, or encourage, promote, facilitate, or instruct others to use the Services, to send messages that contain, offer, promote, reference, or link to any information or content related to any of the following:
Solicitations or Advertising. Any messages, communication, promotions, advertising, or solicitations (like “spam”), including commercial advertising and informational announcements or otherwise, that are unsolicited or for which you do not have the proper consent from the intended recipient. If you are a Customer of any Xipster Client, this includes using the Services to send any such message, communication, or announcement to a Xipster Client or any other person or entity.
Illegal, Harmful, or Fraudulent Activities. Any activities that are illegal, that violate the rights of others, or that may be harmful to others, our operations, or reputation, including but not limited to offering, promoting, disseminating, or facilitating:
child pornography, child sexual abuse material, or other sexually exploitative content; fraudulent goods, services, schemes, or promotions; make-money-fast or “get-rich-quick” schemes (including work-from-home programs, risk investment opportunities, ponzi and pyramid schemes); high-risk financial services (including payday loans, short-term high-interest loans, third-party auto or mortgage loans, student loans, or cryptocurrency); third-party lead generation services (such as companies that buy, sell, or share consumer information); debt collection or forgiveness services (including third-party debt collection, debt consolidation, debt reduction, or credit repair programs) illegal or regulated substances (including, but not limited to, Cannabis, CBD, or offers for (or payment transactions relating to) Prescription Drugs that cannot be sold over- the-counter); Gambling; “SHAFT” use cases (Sex, Hate, Alcohol, Firearms, Tobacco, including vaping-related activities);
phishing or pharming.
Infringing Content. Content that infringes or misappropriates the intellectual property or proprietary rights of others.
Offensive Content. Content that is harassing, defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable.
Harmful Content. Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, or otherwise effect a security breach, including viruses, Trojan horses, worms, time bombs, or cancelbots.
Evasive Content. Content that is designed to intentionally evade filters, detection, or monitoring (see below
Prohibited Industries. If you are using Xipster’s Payment Services, you may not use the services in conjunction with any activities identified as Prohibited Industries, as defined in Xipster’s Payment Service Terms.
Message Abuse; Falsification of Identity or Origin.
You will not send messages using spam bots or other similar systems, alter or obscure mail headers, provide false identification, or assume a sender’s identity without the sender’s explicit permission. You will also not create a false identity or attempt to mislead others as to the identity of the sender or the origin of any data or communications.
Evasion.
You may not use the Services or Xipster Technology to evade Xipster’s (including our subcontractor’s) or a telecommunications provider’s unwanted messaging detection and prevention mechanisms. Examples of prohibited practices include:
Content designed to evade detection. As noted above, we do not allow content which has been specifically designed to evade detection by unwanted messaging detection and prevention mechanisms. This includes intentionally misspelled words or non-standard opt-out phrases which have been specifically created with the intent to evade these mechanisms.
Snowshoeingon. We do not permit snowshoeing, which is defined as spreading similar or identical messages across many phone numbers with the intent or effect of evading unwanted messaging detection and prevention mechanisms.
Use of shared public URL shorteners. Where a web address (i.e., Uniform Resource Locator (URL)) shortener is used, you should not use links that have been shortened using shared public URL shorteners like Bitly or TinyURL. If you want to include shortened URLs in your messages, we recommend using a dedicated short domain.
Reverse Engineering and Related Restrictions.
You will not (a) modify or create a derivative work of the Services or any portion thereof; (b) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Services, except to the extent expressly permitted by applicable law and then only upon advance notice to Xipster; (c) break or circumvent any security measures or rate limits for the Services; or (d) remove or obscure any proprietary or other notices contained in the Services, including in any reports or output obtained from the Services.
Our Monitoring and Enforcement.
We reserve the right, but do not assume the obligation, to monitor content on and sent through the Services and to investigate any violation of the Xipster Terms of Service, including this Policy, or misuse of the Services. We may remove or disable access to any user, content, or resource that violates the Xipster Terms of Service or this Policy or any other agreement we have with you for use of the Services. We may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate customer information. We may also cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Policy.
Our Reporting Violations.
If you become aware of any violation of this Policy, you will immediately notify us and provide us with assistance, as requested, to stop or remedy the violation.
By using or accessing Xipster’s Payments Service, as defined herein, or by signing or otherwise accepting any Subscription Documentation referencing these terms, you (also referred to as “Client”) agree to be bound by the following terms and conditions (the “Payments Service Terms”).
These Payments Service Terms incorporate by this reference the Xipster Terms of Service which, among other terms, contains provisions governing the resolution of claims (see “Disclaimers”, “Limitations of Liability”, “Dispute Resolution”, “General”). In the event of any conflict or inconsistency between these Payments Service Terms and the Xipster Terms of Service, these Payments Service Terms will govern.
Capitalized terms used in these Payments Service Terms without a definition have the same meaning as the defined term in the Xipster Terms of Service. All documents linked in these Payments Service Terms are deemed to those documents as updated from time to time. For the avoidance of doubt, all references in the Xipster Terms of Service to the “Agreement” will include these Payments Service Terms.
1. DEFINITIONS
1.1 “Payment Processing Services” means the ability for you to submit, manage, and complete Transactions with your Customers via the Services, and “Payment Processing Service Providers” means payment processors that Xipster uses to enable the Payment Processing Services.
1.2 “Payments Service” means the Payment Processing Services, together with such related functionality as Xipster may offer from time to time, as provided by Xipster and the Payment Services Providers, and “Payment Service Providers” means the third-party service providers used by Xipster to facilitate certain features of the Payments Service. Payment Service Providers includes Payment Processing Service Providers, and Xipster may add or remove Payment Service Providers from time to time.
1.3 “Personal Data” means information about an identifiable individual or information that is capable of being used (alone or in combination with other information) to identify an individual, (not a company, legal entity, or machine) and is transmitted to or accessible through the Services.
1.4 “Transaction” means a request to capture funds for or from a Customer-associated account with respect to a payment from a Customer, and includes the authorization, settlement, and if applicable, disputes, refunds, and reversals, with respect to such payment request. You initiate Transactions by submitting a request to Xipster via the Payments Services, and Transactions are enabled by Payment Processing Service Providers.
2. SERVICES
2.1 Use of the Payments Service. Subject to your performance of your duties and obligations under the Agreement (including any additional terms set forth in the applicable Subscription Documentation), Xipster will provide you with access to the Payments Service. Xipster will have no obligation to provide any services or perform any tasks not specifically set forth in the Agreement (including any applicable Subscription Documentation).
2.2 Limited /Simulated Payment Services. Xipster may, from time to time and subject to certain restrictions and/or limitations, make certain limited features of the Payments Service, such as Free Trial Simulated Payment environment (“Limited Payment Services”), such as initiation of a Transaction, available to you on a preliminary basis before you have verified your PPSP Account (as defined below). If you elect to use these Limited Payments Services prior to verifying your PPSP Account or linking a valid Client Bank Account to your PPSP Account, you understand and agree that you will not be able to complete the Transaction(s), including the settlement and disbursement of corresponding funds unless and until you connect a valid Client Bank Account. Any funds associated with your incomplete Transaction(s) will be considered Unclaimed Funds (as defined below) and will be treated accordingly.
2.3 Stored Credentials. Xipster may enable functionality in the Payments Service that allows your Customers to store and reuse payment credentials. Stored credentials may be stored on your behalf, or on your Customer’s behalf. If credentials are stored on your behalf, you may subsequently instruct Xipster to initiate a Transaction with that Customer using those credentials, provided that you do so in compliance with: (i) the express consent that you have received from the Customer, as documented in writing; and (ii) these Payments Service Terms and the PPSP Agreement. Xipster may decline to process any such Transaction that you initiate until it is satisfied that you have met this compliance obligation. If credentials are stored on behalf of a Customer, then you may not use those credentials to initiate a Transaction without express authorization of the Customer – it is up to the Customer to decide whether to reuse those credentials to complete a Transaction. You are not entitled to use stored credentials other than as specified in this section, and you will never be entitled to directly access or export stored credentials.
2.4. Subscription and Recurring Transactions. If you use the Payment Services for subscription or recurring Transactions you must ensure that you do so in accordance with applicable laws and regulations, as well as the rules of the payment method for which you are initiating the subscription or recurring Transaction. Without limiting the previous sentence, you must (a) obtain informed consent from Customers before initiating a series of recurring or subscription Transactions, (b) publish and provide Customers with access to a reasonable process by which Customers may cancel recurring or subscription Transactions, and (c) promptly comply with any cancellation request made to you by a Customer (including requests not made via your standard cancellation process).
3. PAYMENT PROCESSING SERVICES
3.1 Account Registration. You may access and fully use the Payment Processing Services only after your Payment Processing Service Provider account (“PPSP Account”) has been activated and verified within Xipster’s platform. You agree and acknowledge that activation of a PSPP Account is subject to approval by the relevant Payment Processing Service Provider, and such Payment Processing Service Provider may suspend or terminate your PPSP Account at any time in accordance with the PPSP Agreement (as defined below). The information you provide to Xipster to facilitate the activation and verification of your PPSP Account must be accurate, current, and complete. Until you have submitted, and Payment Processing Service Provider has reviewed and approved, all required information, your access (if any) to the Payment Processing Services will be on a preliminary, limited basis only, and Xipster may terminate your access at any time and for any reason.
3.2 PPSP Agreement. Your use of the Payment Processing Services is conditional upon you accepting the terms and conditions imposed by the relevant Payment Processing Service Provider with respect to the aspects of the Payments Service that it facilitates (each a “PPSP Agreement“). By submitting Transactions via the Payment Processing Services, you must read and agree to PPSP Agreements of the Payment Processing Service Providers that facilitate the processing of payments. For the avoidance of doubt, Xipster is not a party to any PPSP Agreement.
3.3 PPSP Account Management. The PSPP Agreement describes how your PPSP Account will be managed, including (i) the use and administration of any data about you, your Customers, and your Transactions, and (ii) action that may be submitted via your PPSP Account, such as initiating and refunding Transactions, handling disputes and other functions that are or may become available through your PPSP Account. You consent to Xipster’s disclosure of your data (which may include Personal Data) to each Payment Processing Service Provider and to each Payment Processing Service Provider’s disclosure of your data (which may include Personal Data) to Xipster, as the case may be, for the purpose of facilitating the provision of the Payment Processing Services.
3.4 Responsibility for PPSP Compliance. Xipster is not responsible for any non-compliance by any Payment Service Provider with the terms of any PPSP Agreement, any laws, or payment method provider rules, or for the acts or omissions of any Payment Service Provider in providing services to you or your Customers.
3.5 Termination and Suspension by PPSP. If a Payment Processing Service Provider terminates or suspends your PPSP Agreement or PPSP Account, for any reason, Xipster may immediately terminate or suspend your use of the Payment Processing Services, without any liability to you.
4. DATA USE
4.1 In addition to the Client’s obligations under the Xipster Terms of Service, Client agrees that where Client provides or makes available to Xipster any Client Data (including without limitation, Personal Data about Customers) in connection with Client’s use of the Payments Service, Client grants Xipster and its affiliates the worldwide, non-exclusive, royalty-free, perpetual, fully-paid-up, and irrevocable, right to (i) to collect, use, retain, transfer, and disclose Client Data (including to Xipster’s third-party service providers) in order to provide the Payments Service to Client and (ii) to enable Xipster to use Client Data to: (a) provide the Payments Service; (b) mitigate fraud, financial loss, or other harm; (c) analyze and improve, and incorporate Client Data into, Xipster’s products, systems, and tools. Any information, including Personal Data, provided by Client in connection with the Payments Service will be subject to Xipster’s Privacy Policy.
4.2 Xipster may disclose Client Data pursuant to a data subject access request or consumer data request as required by applicable law, provided that to the extent permitted under applicable law, Xipster notify Client of any such disclosure. Notwithstanding anything herein to the contrary, Xipster will be permitted to retain and use Client Data (to the extent such use is permitted under these Payments Service Terms) associated with a dispute after the expiration or termination of your applicable Subscription Documentation.
5. CLIENT OBLIGATIONS
5.1 Representations and Warranties. Client warrants and represents that it: (i) will comply with this Agreement; (ii) will ensure that its employees, contractors, and agents will at all times comply with the terms of this Agreement; (iii) will only use the Payments Service for bona fide commercial Transactions with its Customers, which have been authorized by those Customers; (iv) will research any Transaction and, if necessary, contact the Customer before completing or fulfilling the Transaction, if Client is unsure if such Transaction is erroneous or suspicious; (v) will be responsible for managing Client’s relationship with its Customers, including communication, selling, and providing products and services, and handling any disputes or returns with such Customers; (vi) will be responsible for providing all notices and obtaining all consents as required under applicable laws or regulations in connection with recurring and subscription Transactions; (vii) will be responsible for providing any other required notices and obtaining all consents as required under applicable laws, rules, regulations, or contract obligations governing any other features of the Payments Service Client uses under this Agreement; and (viii) will ensure that the form and content of any invoices Client generates and sends to its Customers using the Payments Service will comply with applicable law and are sufficient to achieve the legal or tax effects Client is trying to achieve. You affirm that you are solely responsible for the nature and quality of the products or services you provide and for the delivery, support, refunds, returns, and any other ancillary services you provide to your Customers.
5.2 Additional Representations. Client further represents and warrants that it: (i) has obtained necessary consent from the Customers in order for Xipster to use Client Data in accordance with these Payments Service Terms, (ii) has provided notices to Customers, as required under applicable law, (iii) if applicable, has obtained consent from Customers to use automated decision making, (iv) has provided Customers with the ability to exercise any access rights as required under applicable law, and (v) complies with any requirements or limitations regarding the processing of Personal Data and data of minors, in each case, to the extent required under applicable law.
5.3 Unauthorized Activity. Client is responsible for any activity initiated using credentials issued by Xipster or any Payment Service Provider. Where Xipster incurs any losses based on unauthorized activity initiated by Client or on Client’s behalf, Client is financially liable for such losses. Such losses may be deducted from Client’s PPSP Account, or Xipster may require Client to pay such losses.
6. REQUIREMENTS, LIMITATIONS AND RESTRICTIONS
6.1 Compliance with Laws. You must use the Payments Service in a lawful manner, and must obey all laws, rules, and regulations (“Laws”) applicable to your use of the Payments Service. As applicable, this may include compliance with domestic and international Laws related to the use or provision of financial services, notification and consumer protection, unfair competition, privacy, and false advertising, and any other Laws relevant to Transactions.
6.2 Prohibited Businesses. You may not use the Payments Service to enable any person (including you) to benefit from any activities Xipster (or a Payment Service Provider) has identified as a restricted business or activity (“Prohibited Businesses”), including those businesses listed in the Xipster Acceptable Use Policy and the Payment Procerssing Services Provider Restricted Business List, as well as any pornography, gambling, and/or firearms related businesses, activities, or transactions. “Prohibited Businesses” also includes any country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the Canadian government. If you are uncertain whether a category of business or activity is restricted or have questions about how these restrictions apply to you, please contact Xipster.
6.3 Other Restricted Uses. You may not use the Payments Service to facilitate illegal Transactions or to permit others to use the Payments Service for personal, family, or household purposes. In addition, you may not allow, and may not allow others to: (i) access or attempt to access non-public systems, programs, data, or services; (ii) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any data, content, or any part of the Payments Service, documentation, or Xipster’s website except as expressly permitted by applicable Laws; (iii) act as service bureau or pass-through agent for the PPSP Account with no added value to your Customers; (iv) transfer any rights granted to you under this Agreement; (v) work around any of the technical limitations of the Payments Service or enable functionality that is disabled or prohibited; (vi) reverse engineer or attempt to reverse engineer the Payments Service except as expressly permitted by Laws; (vii) perform or attempt to perform any actions that would interfere with the normal operation of the Payments Service or affect use by Xipster’s other users; or (ix) impose an unreasonable or disproportionately large load on the Payments Service.
7. FEES, SETTLEMENT & PAYOUT SCHEDULE
7.1 Fees. In addition to any other Fees due to Xipster under the Subscription Documentation, Client will pay a fee assessed on a per Transaction basis (“Transaction Fee”) and any additional fees for additional features within the Payments Service which may be made available by Xipster from time to time (the Transaction Fees, together with the additional fees (if any), are “Payments Service Fees”, which form part of the Fees, as that term is defined in the Xipster Terms of Service).
7.2 Determining Fees. Fees are set by Xipster in its sole discretion, and Fees are payable in accordance with these Payments Service Terms, the Xipster Terms of Service, and your applicable Subscription Documentation. If no Payments Service Fees are specified on your Subscription Documentation, your use of the Payments Service will be subject to Xipster’s then-current rates, available at the Xipster Pricing Page. Xipster may revise the Payments Service Fees at any time, by providing notice to Client, with the change in Fees effective thirty (30) days from the date of the applicable notice. In addition to the Fees, you must reimburse Xipster for any liabilities incurred by Xipster as a result of your use of the Payments Service in a manner not permitted by this Agreement or a PPSP Agreement, including penalties and fines. You agree that Xipster will have the right to deduct the applicable Fees (including the Payments Service Fees) and any amounts otherwise due to Xipster from your PPSP Account. If your PPSP Account balance is insufficient, Xipster may debit the Client Bank Account to recover owed amounts.
8. SUSPENSION & TERMINATION
8.1 Xipster may refuse, condition, or suspend any Transactions that we believe: (i) may violate this Agreement; (ii) are unauthorized, fraudulent, or illegal; or (iii) expose you, Xipster, or others to risks unacceptable to Xipster. If we suspect or know that you are using or have used the Payments Service for unauthorized, fraudulent, or illegal purposes, we may share any information related to such activity with the appropriate financial institution, regulatory authority, or law enforcement agency consistent with our legal obligations. This information may include information about you, your Payment Provider Account, your Customers, and Transactions made through your use of Payment the Services.
8.2 Xipster may also suspend your access to and/or use of the Payments Service, your PPSP Account, and your access to funds in your account, or terminate this Agreement, at any time if you are in breach of this Agreement, a PPSP Agreement, or Xipster believes that your continued use of the Payments Service creates, or is likely to create a risk of harm to Xipster, a Customer, or any other third party.
8.3 Termination of the Payments Service Terms means that you will no longer be authorized to access the Payments Service, which includes the ability to submit Transactions via the Payment Processing Services, however, termination will not affect your continued liability with respect to Transactions that you submit prior to date of termination.
9. LIMITATIONS ON XIPSTER’S LIABILITY
9.1 Xipster is not responsible for Client’s obligations to its Customers (including properly describing and delivering the goods or services being sold to Customers). You are solely responsible for, and Xipster expressly disclaims all liability for, your compliance with applicable laws and obligations related to your provision of the goods or services to your Customers. This may include providing customer service, notification, and handling of refunds or Customer complaints, provision of receipts, registering your legal entity, or other actions not related to the Services. You agree to indemnify Xipster for any losses we incur based on your failure to properly describe or deliver goods or services, or comply with your legal or contractual obligations to any Payment Service Provider or your Customers.
9.2 This Section is in addition to, and does not limit in any way, the risk allocation provisions of the Xipster Service Terms.
10. ADDITIONAL SERVICES
10.1 From time to time, Xipster may offer Services that supplement the Payments Service (“Additional Services”). Additional Services are Payments Services that are subject to additional terms and conditions, and you accept the relevant additional terms and conditions when you use an Additional Service.
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