XENA End User License Agreement
XENA’s crowd-sourced incident reporting platform and the CSIR, Inc. website (the “Software”) belongs to CSIR, Inc. and its related companies (“Company”). The Software allows You to report non-emergency incidents (our “Services”) to governmental, public, and private organizations participating in the use of the Software (“Participating Organizations”), by photo, video, audio, data, text of other materials (“User Content”).
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 10.2) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Account Creation. You may use some features of the Software as a guest user; however, in order to use certain features of the Software, You must register for an account (“Account”) and provide certain information about Yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information You submit is truthful and accurate; (b) You will maintain the accuracy of such information. Company may suspend or terminate Your Account in accordance with Section 8.
Account Responsibilities. You are responsible for maintaining the confidentiality of Your Account login information and are fully responsible for all activities that occur under Your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of Your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from Your failure to comply with the above requirements.
Access to the Software
License. Subject to these Terms, Company grants You a non-transferable, non-exclusive, revocable, limited license to use and access the Software solely for Your own use. You agree that You will only use the Software pursuant to the terms of this Agreement.
Certain Restrictions. CSIR, Inc. retains all ownership and intellectual property rights in the Software. The rights granted to You in these Terms are subject to the following restrictions: (a) You shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Software, whether in whole or in part, or any content displayed on the Software; (b) You shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Software; (c) You shall not access the Software in order to build a similar or competitive Software, product, or Service; and (d) except as expressly stated herein, no part of the Software may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Software shall be subject to these Terms. All copyright and other proprietary notices on the Software (or on any content displayed on the Software) must be retained on all copies thereof.
Modification. Company reserves the right, at any time, to modify, suspend, or discontinue the Software (in whole or in part) with or without notice to You. You agree that Company will not be liable to You or to any third party for any modification, suspension, or discontinuation of the Software or any part thereof.
No Support or Maintenance. You acknowledge and agree that Company will have no obligation to provide You with any support or maintenance in connection with the Software.
Ownership. Excluding any User Content that You may provide (defined below), You acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Software and its content are owned by Company or Company’s suppliers. Neither these Terms (nor Your access to the Software) transfers to You or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Software (e.g., content in the user’s profile or postings). You are solely responsible for Your User Content. By submitting Your User Content, You represent that You have all the necessary rights, licenses and permissions to use and/or submit the User Content herein, and that said User Content does not contain third party copyright material. You assume all risks associated with use of Your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of Your User Content that personally identifies You or any Third Party. You agree to indemnify and hold Company harmless if You violate any copyright or intellectual property right of a third party in Your use of the Software. You hereby represent and warrant that Your User Content does not violate our Acceptable Use Policy (defined in Section 3.3). You may not represent or imply to others that Your User Content is in any way provided, sponsored or endorsed by Company. Because You alone are responsible for Your User Content, You may expose Yourself to liability if, for example, Your User Content violates the Acceptable Use Policy. Company is not obligated to backup any User Content, and Your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining Your own backup copies of Your User Content if You desire.
Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
You agree not to use the Software to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
In addition, You agree not to: (i) upload, transmit, or distribute to or through the Software any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Software unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Software to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Software, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Software (or to other computer systems or networks connected to or used together with the Software), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Software; or (vi) use software or automated agents or scripts to produce multiple accounts on the Software, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Software.
(c) Further, You agree that the Software and Services should not be relied upon in emergency situations. You should not use and/or rely on Company Software and Services in situations where death, personal injury, property damage, environmental damage or any other harm that might occur as a result of recipient failing to receive User Content. Company does not guarantee the availability, accuracy, quality, completeness, reliability or timeliness of User Content received on the Software or provided to non-Participating and Participating Organizations in connection with the Services.
Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against You in our sole discretion if You violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying Your User Content, terminating Your Account in accordance with Section 8, and/or reporting You to law enforcement authorities.
Feedback. If You provide Company with any feedback or suggestions regarding the Software (“Feedback”), You hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company may, but is not required to, follow up with You on any Feedback that You provide to the Company. Company will treat any Feedback You provide to Company as non-confidential and non-proprietary. You agree that You will not submit to Company any information or ideas that You consider to be confidential or proprietary.
Indemnification. You agree to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) Your use of the Software, (b) Your violation of these Terms, (c) Your violation of applicable laws or regulations or (d) Your User Content. Company reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify us, and You agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. You agree to promptly use reasonable efforts to notify Company of any such claim, action or proceeding upon becoming aware of it, but no later than two weeks after being made aware of such claims.
Third-Party Content; Other Users
Third-Party Content. The Software may contain third-party Software and services (collectively, “Third-Party Content”). Such Third-Party Content is not under the control of Company, and Company is not responsible for any Third-Party Content. Company provides access to Third-Party Content only as a convenience to You, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Content. You use all Third-Party Content at Your own risk, and should apply a suitable level of caution and discretion in doing so. When You use any of the Third-Party Content, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation You feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Content.
Other Users. Each Software user is solely responsible for any and all of its own User Content. Because we do not control User Content, You acknowledge and agree that we are not responsible for any User Content, whether provided by You or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content.
Release. You hereby release and forever discharge the Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Software (including any interactions with, or act or omission of any Third-Party Content). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
THE SOFTWARE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SOFTWARE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF THE TYPE OF ACTION BROUGHT, WHETHER IN CONTRACT, TORT, OR FOR NEGLIGENCE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL BE TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION 8.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Term and Termination. Subject to this Section, these Terms will remain in full force and effect while You use the Software. We may suspend or terminate Your rights to use the Software (including Your Account) at any time for any reason at our sole discretion, including for any use of the Software in violation of these Terms. Upon termination of Your rights under these Terms, Your Account and right to access and use the Software will terminate immediately. You understand that any termination of Your Account may involve deletion of Your User Content associated with Your Account from our live databases. Company will not have any liability whatsoever to You for any termination of Your rights under these Terms, including for termination of Your Account or deletion of Your User Content. Even after Your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2.2 through 2.5, Section 3 and Sections 4 through 10.
Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify You by sending You an e-mail to the last e-mail address You provided to us (if any), and/or by posting the changes on our Software. You are responsible for providing us with Your most current e-mail address. Any changes to these Terms will be effective immediately. Continued use of our Software following notice of such changes shall indicate Your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of Your contract with Company and affects Your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to You and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms. Company retains it’s right to pursue litigation against Consumer at Company’s discretion.
Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: 900 S. Figueroa St., #3005, Los Angeles, California 90015. After the Notice is received, You and the Company may attempt to resolve the claim or dispute informally. If You and the Company do not resolve the claim or dispute within ninety (90) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, or at the Company’s discretion, Company shall select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within twenty (20) miles of Company’s place of business, unless the parties agree otherwise. If You reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants You an award that is greater than the last settlement offer that the Company made to You prior to the initiation of arbitration, the Company will pay You the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider, provided, if the arbitrator rules in favor of the Company, You shall pay for Company’s costs for the arbitration proceedings.
Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
Time Limits. If You or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of You and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon You and the Company.
Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between You and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
Survival of Agreement. This Arbitration Agreement will survive the termination of Your relationship with Company.
Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California, for such purpose
Export. The Software may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
Electronic Communications. The communications between You and Company use electronic means, whether You use the Software or send us emails, or whether Company posts notices on the Software or communicates with You via email. For contractual purposes, You (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to You electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect Your non-waivable rights.
Entire Terms. These Terms constitute the entire agreement between You and us regarding the use of the Software. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. These Terms, and Your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by You without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
Copyright/Trademark Information. Copyright © 2016, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Software are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
900 S. Figueroa St. #3005
Los Angeles, California 90015