Terms & Conditions of Use

Acceptance of Terms of Use

These Terms of Use govern your use of the XOGENT, LC and its affiliates (Hereinafter “XOGENT’s”) online and mobile web site (the “Website” or collectively, the “Websites”) and our tablet and smartphone applications (the “Application” or collectively the “Applications”). By using, visiting, or browsing the Websites or using the Applications, you accept and agree to be bound by these Terms of Use. If you do not agree to these Terms of Use, do not use the Websites or Applications. These Terms of Use are an ongoing contract between you and XOGENT and apply to your use of the Websites or Applications. These Terms of Use affect your rights and you should read them carefully.

Changes to Terms of Use

XOGENT reserves the right, from time to time, with or without notice to you, to change these Terms of Use in our sole and absolute discretion. The most current version of these Terms of Use can be reviewed by clicking on the “Terms of Use” located at the bottom of the pages of the XOGENT Web site. The most current version of the Terms of Use will supersede all previous versions. Your use of the XOGENT Web site after changes are made means that you agree to be bound by such changes.

Privacy and Personal Information

XOGENT is committed to protecting the privacy of the personal information you provide us on our Websites and Applications. Any information submitted on the Websites and Applications is subject to our Privacy Policy, the terms of which are incorporated herein. Please review our Privacy Policy to understand our practices. The date of any changes to our Privacy Policy will be noted at the bottom of our Privacy Policy.

Your Account

If you use the Websites or Applications, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, smartphone or tablet, and you agree to accept responsibility for all activities that occur under your account or password. The Websites and Applications sell products to adults, who can purchase with a credit card. If you are under 18, you may use the Websites and Applications only with involvement of a parent or guardian. XOGENT and its affiliates reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion.

Your Acceptance

BY USING AND/OR VISITING ANY WEBSITE or APPLICATION OPERATED BY XOGENT LC (“XOGENT’s”), YOU SIGNIFY YOUR ASSENT TO BOTH THESE TERMS AND CONDITIONS (the “Terms of Use”) AND THE TERMS AND CONDITIONS OF XOGENT’S PRIVACY NOTICE (“Privacy Policy”), WHICH ARE INCORPORATED HEREIN BY REFERENCE. If you do not agree to any of these terms, then please do not use the Websites or Applications.

XOGENT Websites and Applications

These Terms of Use apply to all users of the Websites and Applications, including users who are also contributors of video content, information, and other materials or services on the Websites or Applications. The Websites and Applications may contain links to third party websites that are not owned or controlled by XOGENT. XOGENT has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, XOGENT’s will not and cannot censor or edit the content of any third-party site. By using the Websites or Applications, you expressly relieve XOGENT’s from any and all liability arising from your use of any third-party website. Accordingly, we encourage you to be aware when you leave the Websites or Applications and to read the terms and conditions and privacy policy of each other website that you visit.

Website/Application Access

XOGENT’s hereby grants you permission to use the Websites as set forth in this Terms of Use, provided that: (i) your use of the Websites and Applications as permitted are solely for your personal, noncommercial use; (ii) you will not copy or distribute any part of the Websites or Applications in any medium without XOGENT’s prior written authorization; (iii) you will not alter or modify any part of the Websites or Applications other than as may be reasonably necessary to use the Websites or Applications for their intended purpose; and (iv) you will otherwise comply with the terms and conditions of these Terms of Use.

In order to access some features of the Websites or Applications, you will have to create an account. You may never use another’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify XOGENT’s immediately of any breach of security or unauthorized use of your account. Although XOGENT will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of XOGENT or others due to such unauthorized use.

You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Websites or Applications in a manner that sends more request messages to the XOGENT servers in a given period of time than a human can reasonably produce in the same period by using a convention on-line web browser. Notwithstanding the foregoing, XOGENT grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. XOGENT reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Websites or Applications, nor to use the communication systems provided by the Websites or Applications for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Websites or Applications with respect to their User Submissions.

Intellectual Property Rights

The content on the Websites and Applications, except all User Submissions (as defined below), including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (“Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to XOGENT, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on the Websites and Applications is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. XOGENT reserves all rights not expressly granted in and to the Websites, Applications and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of User Submissions of third parties obtained through the Websites or Applications for any commercial purposes. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the Websites and Applications or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Websites and Applications or the Content therein.

User Submissions

The Websites or Applications may now or in the future permit the submission of photos, audio files, videos or other communications submitted by you and other users (“User Submissions”) and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, XOGENT does not guarantee any confidentiality with respect to any submissions. You agree that XOGENT may publish your name and User Submission on the Websites, Applications or in other press releases or media items.

You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize XOGENT to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Websites, Applications and these Terms of Use; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Websites, Applications and these Terms of Use. User agrees that any name registrations become the property of XOGENT LC and XOGENT may use such submissions in any manner in the sole discretion of XOGENT. For clarity, you retain all of your ownership rights in your other User Submissions. However, by submitting the User Submissions to XOGENT, you hereby grant XOGENT a perpetual worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the Websites, Applications and XOGENT’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the Websites or Applications (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each recipient of any User Submission a non-exclusive license to access your User Submissions through the Website or Applications, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Websites, Applications and under these Terms of Use.

In connection with User Submissions, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant XOGENT all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage XOGENT or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business: (v) impersonate another person. XOGENT does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and XOGENT expressly disclaims any and all liability in connection with User Submissions. XOGENT does not permit copyright infringing activities and infringement of intellectual property rights on its Websites or Applications, and XOGENT will block and remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another’s intellectual property rights. XOGENT reserves the right to remove Content and User Submissions without prior notice. XOGENT will also terminate a User’s access to its Websites or Applications, if they are determined to be a repeat infringer. A repeat infringer is a User who has been notified of infringing activity twice and/or has had a User Submission removed from the Websites or Applications. XOGENT also reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms of Use for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. XOGENT may remove such User Submissions and/or terminate a User’s access for uploading such material in violation of these Terms of Use at any time, without prior notice and at its sole discretion. In addition, you agree that you will not email any of your User Submissions or links to your User Submissions to individuals with whom you are not acquainted.

In particular, if you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. XOGENT’s designated Copyright Agent to receive notifications of claimed infringement is: Lawton Brown, 75 Maddox Road, Suite 300, Buford, GA 30518, email: lawton.brown@xogent.com. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to XOGENT’s customer service. You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid.

You understand that when using the Websites and Applications, you may be exposed to User Submissions from a variety of sources, and that XOGENT is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against XOGENT with respect thereto, and agree to indemnify and hold XOGENT, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the site.

Warranty Disclaimer

YOU AGREE THAT YOUR USE OF THE XOGENT’S WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, XOGENT, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF. XOGENT MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONSIN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE XOGENT’S WEBSITE. XOGENT DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE XOGENT’S WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND XOGENT WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.YOU AGREE THAT YOUR USE OF THE WEBSITES AND APPLICATIONS SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, XOGENT, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITES, APPLICATIONS AND YOUR USE THEREOF. XOGENT’S MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITES’ AND APPLICATIONS’ CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE WEBSITES OR APPLICATIONS AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITES AND APPLICATIONS, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITES OR APPLICATIONS, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITES AND APPLICATIONS BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONSIN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITES AND APPLICATIONS. XOGENT DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITES OR APPLICATIONS OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND XOGENT WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

Limitation of Liability

IN NO EVENT SHALL XOGENT, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITES OR APPLICATIONS, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITES OR APPLICATIONS, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITES OR APPLICATIONS BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITES OR APPLICATIONS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER ORNOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

YOU SPECIFICALLY ACKNOWLEDGE THAT XOGENT SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

The Websites and Applications are controlled and offered by XOGENT from its facilities in the United States of America. XOGENT makes no representations that the Websites and Applications are appropriate or available for use in other locations. Those who access or use the Websites and Applications from other jurisdictions do so at their own volition and are responsible for compliance with local law.

Indemnity

You agree to defend, indemnify and hold harmless XOGENT, its parent corporations, affiliates officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Websites and Applications; (ii) your violation of any term of these Terms of Use; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party. This defense and indemnification obligation will survive these Terms of Use and your use of the Websites and Applications.

Ability to accept Terms of Service

You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Use, and to abide by and comply with these Terms of Use. In any case, you affirm that you are over the age of 13, as the Websites and Applications are not intended for children under 13. If you are under 13 years of age, then please do not use the Websites or Applications – there are lots of other great web sites and applications for you. Talk to your parents about what sites and applications are appropriate for you.

Assignment

These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by XOGENT without restriction.

XOGENT Intellectual Property

This Websites and Applications contain many valuable trademarks owned and used by XOGENT LC, and its subsidiaries and affiliates throughout the world. These trademarks are used to distinguish XOGENT’s quality products and services. These trademarks and related proprietary property are protected from reproduction and simulation under national and international laws and are not to be copied without the express written permission of XOGENT LC.

The text, graphics and html code contained in the Websites and Applications are the exclusive property of XOGENT LC. Except where otherwise noted, the text, graphics and html code contained here may not be copied, distributed, displayed, reproduced or transmitted in any form or by any means without the prior written permission of XOGENT LC.

The Websites and Applications may link to sites not maintained by or related to XOGENT. Hyper-text links are provided as a service to users and are not sponsored by or affiliated with the Websites, Applications or XOGENT. XOGENT has not reviewed the sites hyper-linked to or from the Websites and Applications and is not responsible for the content of any other site. These links are to be accessed at the user’s own risk. XOGENT makes no representations or warranties about the content, completeness, or accuracy of these links or the sites hyper-linked to the Websites or Applications. Furthermore, XOGENT does not implicitly endorse third-party sites hyper-linked to the Websites or Applications.

Arbitration

BECAUSE OF THE MUTUAL BENEFITS (SUCH AS REDUCED EXPENSE AND INCREASED EFFICIENCY) WHICH PRIVATE BINDING ARBITRATION CAN PROVIDE BOTH YOU AND XOGENT, BOTH XOGENT AND YOU AGREE THAT ANY CLAIM, DISPUTE, AND/OR CONTROVERSY RELATING IN ANY WAY TO YOUR USE OF THE WEB SITES AND APPLICATIONS, OR TO ANY PRODUCTS SOLD BY XOGENT OR THROUGH THE WEBSITES OR THE APPLICATIONS SHALL BE SUBMITTED TO AND DETERMINED EXCLUSIVELY BY BINDING ARBITRATION UNDER THE FEDERAL ARBITRATION ACT, 9 U.S.C. SECTIONS 1-16, RATHER THAN IN COURT.

Any arbitration pursuant to the Privacy Policy or Terms of Use shall be initiated with and conducted by the American Arbitration Association (AAA), whose rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes, may be obtained at http://www.adr.org or by calling (800) 778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in Gwinnett County, Georgia. Nothing herein shall prevent XOGENT or you from obtaining from a court a temporary restraining order or preliminary injunctive relief to preserve the status quo or prevent any irreparable harm pending the arbitration of the underlying claim, dispute, and/or controversy.

In addition to requirements imposed by law, any arbitrator herein shall be a retired state or federal court judge, or licensed attorney with arbitration experience and at least ten years’ experience as a lawyer, as mutually agreed to by the parties, and shall be subject to disqualification on the same grounds as would apply to a judge of a court of relevant jurisdiction. The arbitrator shall follow controlling law and issue a decision in writing within 45 days of the arbitration hearing with a supporting opinion based on applicable law. If the decision and supporting opinion are not appealed as described below within 90 days of issuance of the decision, then the decision is final, binding, and conclusive on the parties and may be entered in any court of competent jurisdiction. At either party’s election, such decision and supporting opinion may be appealed to another arbitrator (“appellate arbitrator”), who shall be chosen in the same manner as described above. The appellate arbitrator shall apply to the underlying decision and opinion the same standard for review of civil cases as an appellate court in the relevant jurisdiction and issue a decision in writing with a supporting opinion based on such review and applicable law. The appellate arbitrator’s decision shall be final, binding and conclusive on the parties and may be entered in any court of competent jurisdiction.

WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE, MULTIPLE-PARTY, OR PRIVATE ATTORNEY GENERAL BASIS. YOU AND XOGENT UNDERSTAND THAT BY AGREEING TO THIS BINDING ARBITRATION PROVISION, BOTH GIVE UP THEIR RIGHT TO TRIAL BY JURY OF ANY INDIVIDUAL, CLASS, COLLECTIVE ACTION, MULTIPLE-PARTY, PRIVATE ATTORNEY GENERAL, OR OTHER CLAIM EITHER MAY HAVE AGAINST THE OTHER, EXCEPT AS EXPRESSLY PROVIDED HEREIN.

Should any term or provision, or portion thereof, be declared void or unenforceable or deemed in contravention of law, it shall be severed and/or modified by the arbitrator or court and the remainder of this agreement shall be enforceable; provided, however, that if the provision above prohibiting class-wide, collective action, consolidated, or other group arbitration is deemed invalid, then this entire arbitration provision shall be null and void.

General

You agree that: (i) the Websites and Applications shall be deemed solely based in Georgia; and (ii) the Websites and Applications shall be deemed passive websites and applications that do not give rise to personal jurisdiction over XOGENT, either specific or general, in jurisdictions other than Georgia. These Terms of Use shall be governed by the internal substantive laws of the State of Georgia, without respect to its conflict of laws principles. These Terms of Use, together with the Privacy Policy and any other legal notices published by XOGENT on the Websites or Applications, shall constitute the entire agreement between you and XOGENT concerning the Websites and Applications. If any provision of these Terms of Use is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. No waiver of any term of this these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and the failure by XOGENT to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision. XOGENT reserves the right to amend these Terms of Use at any time and without notice, and it is your responsibility to review these Terms of Use for any changes. Your use of the Websites and Applications following any amendment of these Terms of Use will signify your assent to and acceptance of its revised terms. YOU AND XOGENT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITES AND APPLICATIONS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

These Terms of Use were updated as of 31 March 2015.