Terms of Service

Last revised on: August 25, 2020

BY USING THIS APPLICATION, INCLUDING THE SERVICE (AS DEFINED BELOW) EMBODIED IN THE MOBILE APPLICATION (COLLECTIVELY, THE “APPLICATION”), YOU (THE “USER”) ACCEPT THESE TERMS OF USE (“TERMS”). THESE TERMS CONSTITUTE A BINDING AGREEMENT, GOVERNING USE OF THE APPLICATION, BETWEEN USER AND XOBA, INCLUDING ITS SUBSIDIARIES, RELATED, AND AFFILIATED COMPANIES (INDIVIDUALLY OR COLLECTIVELY XOBA, INC., A DELAWARE CORPORATION D/B/A XOBA (“XOBA”, “XOBA LABS”, “COMPANY”, “US” OR “WE”),). BY DOWNLOADING, INSTALLING, OR USING THE APPLICATION, USER ACKNOWLEDGES AND AGREES TO BE BOUND BY THESE TERMS. SHOULD USER NOT ACKNOWLEDGE AND AGREE TO THESE TERMS, USER MUST IMMEDIATELY UNINSTALL THIS APPLICATION AND DISCONTINUE ITS USE. THESE TERMS ARE ALSO AVAILABLE ON THE WEBSITE (HTTPS://WWW.XOBALABS.COM) AND IN THE APPLICATION’S ABOUT SECTION. CONTINUED USE OF THE APPLICATION SIGNIFIES YOUR CONTINUED ACCEPTANCE OF THESE TERMS AND ANY CHANGES TO THEM.

Change of terms of Service

From time to time, Xoba may modify existing terms and/or update these terms with additional terms that apply to the Service. For example, Xoba may modify existing terms to reflect any mandatory changes to the law. You should check the terms regularly to keep informed. Xoba will also post notice of modification to these Terms on this page or via the email address you registered with us. Note, changes will not apply retroactively and will become effective thirty (30) days after they are posted on our website. Changes addressing new functions for the Service or changes made for legal reasons may be effective immediately. You should discontinue your use of our Service if you do not agree with updated/modified Terms.

Privacy Protection

Xoba’s privacy policies explain how we treat your personal data and protect your privacy when using our Service. By using our Service, you automatically agree to our privacy policies and Xoba can use such data in accordance with its privacy policies.

Age Restriction

Only individuals thirteen (13) years of age or older may use the Application.  Users between the ages of thirteen (13) and eighteen (18) must review these Terms with a parent or legal guardian to ensure the parent or legal guardian acknowledge and agree to these Terms.  Should User’s parent or legal guardian not acknowledge and agree to these Terms, User must immediately uninstall this Application and discontinue its use. 

Your Content in Our Service

Our service allows you to upload, download and store content, including but not limited to, information, text, graphics, videos, audios, or other material (“Content”). You retain ownership of any intellectual property rights that you hold in that Content. When you upload, store, send or receive Content to or through our Service, you give Xoba and its service partners a worldwide license to host, store, upload and download this Content and only for the purpose of providing Service strictly to you and your use of the Content. We reserve our right at all times, but are not obligated, to remove or refuse to distribute any Content through the Service including your Content.

Your Data

You will retain ownership of any data, information or material originated by you that you transmit through the Service (“User Data”) – for example, User Data from your accounts with third-party services that passes through the Service. You shall be solely responsible for the accuracy, quality, content and legality of User Data, the means by which User Data is acquired and the transmission of User Data outside of the Service. You represent and warrant that you have all rights necessary to transmit User Data through the Service and to otherwise have User Data used as part of the Service or as otherwise contemplated herein.

Aggregated and/or Anonymized Data

Notwithstanding anything to the contrary set forth herein or otherwise, Xoba will have the right to collect and analyze data and other information relating to the provision, use or performance of the Site and/or Service and related systems and technologies (including information concerning User Data and data derived therefrom), and to aggregate and/or anonymize all such data and information. Xoba will be free at any time to: (i) use such information and data to improve and enhance Xoba’s offerings; and (ii) disclose such data in aggregate or other de-identified form in connection with its business.

Software in Our Service

When the Service requires or includes downloadable software, this software may update automatically on your device once a new version or features become available to you. Some platforms may let you adjust your automatic update settings.

Xoba gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided by Xoba as part of the Service. 

You may not copy, modify, distribute, sell, or lease any part of our Service or included software, nor may you reverse engineer or attempt to extract the source code of the software, unless local laws prohibit those restrictions or you have our written permission.

Modifying and Terminating Our Service

Xoba reserves the right to change or modify these Terms or any other Xoba terms, conditions, or policies related to use of the Application (including those identified in this agreement) at any time and at its sole discretion by posting revisions on the website (http://www.xobalabs.com) or within this Application. 

We may also suspend or stop our Service with at least thirty (30) days notice prior to the complete shutdown of our Service. Continued use of the Application following the posting of these changes or modifications will constitute the User’s acknowledgement and agreement to such changes or modifications.  

You can choose to stop using our Service at will. We may also stop providing Service to you, or add or create new limitations to our Service at any time as detailed in the Terms.

Using Our Service

You must follow any policies made available to you within the Service. You may only use our Service as permitted by law. Xoba may investigate and/or suspend or terminate our Service to you at any time if we find your use of our Service violates the Terms and/or any policies.

Using our Service does not grant you ownership of any intellectual property rights in our Service or the content you may have access to. You may not use any copyrighted content in our Service unless you obtain permission from the content owner and/or are otherwise permitted by law. The Terms do not grant you the right to use any branding or logos used in our Service. Our Service may display some logos, trademarks, or branding materials that are not the property of Xoba. These types of content are the sole responsibility of the entity that makes it available.

You must not abuse and/or misuse our Service, including but not limited to, doing the following things:

  1. Using the Service for any unlawful purposes or activities;
  2. Uploading any content to the Service in violation of any applicable law, including but not limited to, intellectual property laws and publicity laws;
  3. Sending unsolicited promotions or advertisements;
  4. Accessing or tampering with the Service’s server systems;
  5. Interfering with or disrupting the access of any user, host, or network;

Xoba, in its sole discretion, will determine abuse and/or misuse of our Service.

Premium Service and Payments

You may choose our free Service or paid Service (“Premium”) depending on your need. Xoba does not guarantee when, if ever, Premium features will be available in the free Service. 

When a free trial of Premium is offered, you will have access to all Premium features. After the free trial period, if you choose not to upgrade to Premium, features available to you will be limited to free Service. You will be charged with the amount shown on Pricing before you can access Premium. All prices shown on Pricing are exclusive of any applicable sales taxes, levies, value-added taxes, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies, or duties.

BY PURCHASING PREMIUM YOU EXPRESSLY UNDERSTAND AND AGREE TO OUR REFUND POLICY.

No Warranties

XOBA IS PROVIDING THE APPLICATION, SERVICE AND CONTENT TO THE USER “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESSED OR IMPLIED.  THE USER IS USING THE APPLICATION AT HIS OR HER OWN RISK.  TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, Xoba DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES THAT THE APPLICATION IS MERCHANTABLE, RELIABLE, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, NON-INFRINGING OR FREE OF DEFECTS OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, OR THAT THE USE OF THE APPLICATION BY THE USER IS IN COMPLIANCE WITH LAWS, OR THAT USER INFORMATION TRANSMITTED IN CONNECTION WITH THE APPLICATION WILL BE SUCCESSFULLY, ACCURATELY OR SECURELY TRANSMITTED. 

Limited Liability for Our Service

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICE IS AVAILABLE “AS IS”. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

WHEN PERMITTED BY LAW, Xoba AND ITS SERVICE PARTNERS, LICENSORS, EMPLOYEES, AGENTS WILL NOT BE RESPONSIBLE FOR ANY LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES.

YOUR USE AND/OR PURCHASE OF SERVICE ARE ALL AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” BASIS.

Xoba DOES NOT WARRANT THAT:

  1. THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS AT ALL TIMES;
  2. THE SERVICE WILL BE ERROR-FREE AND ALL ERRORS IN THE SERVICE WILL BE CORRECTED;
  3. THE SERVICE WILL BE UNINTERRUPTED.

ALL CONTENT DOWNLOADED, UPLOADED AND/OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER EQUIPMENT OR DEVICES, INCLUDING BUT NOT LIMITED TO, LAPTOP COMPUTERS, DESKTOP COMPUTER, TABLETS, SMARTPHONES AND SMARTWATCHES, OR ANY DATA LOSS RESULTING FROM DOWNLOAD OR USE OF ANY SUCH ABOVE MENTIONED MATERIAL.

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.

  1. 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.
  2. 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 1082 Pennsylvania Ave #309 San Francisco, CA 94107. 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 thirty (30) 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.
  3. 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, the parties shall agree to 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 100 miles of your residence unless you reside outside of the United States, and 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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 is resolved by a judge.
  8. 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. 
  9. 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.
  10. 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.
  11. 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.
  12. Survival of Agreement.This Arbitration Agreement will survive the termination of your relationship with Company. 
  13. Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
  14. 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.
  15. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
  16. 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 Alameda County, California, for such purpose

Export

The Site 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 the Company, or any products utilizing such data, in violation of the United States export laws or regulations.

Entire Terms

These Terms constitute the entire agreement between you and us regarding the use of the Site. 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. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. 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. Companies may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.

Severability

If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, those terms shall be deemed severable and shall not affect the validity and enforceability of any remaining terms.  Failure of Xoba to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance.

Contact Us

If you have any questions regarding privacy while using the Application, or have questions about our practices, please contact us via email at support@xobalabs.com

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