Terms and Conditions

Xnote's General Terms and Conditions

These General Terms and Conditions govern Your use of Xnote's Services. By accessing or using Xnote's Services in any way, You expressly acknowledge and agree to be bound by these Terms and Conditions. It is Your exclusive obligation to review these Terms and Conditions carefully. Please do so. If You do not agree to be bound by all provisions, please exit the website promptly.

These Terms and Conditions are also part of Xnote Master Services Agreement ("MSA") and are incorporated therein by reference. Capitalized terms have the same meaning given to them in the MSA.

  1. AMENDMENT, RESERVATION OF RIGHTS

Xnote reserves the right to change its terms and conditions at any time without prior notice to you. Your continued use of Xnote's Services constitutes Your consent to be bound by the latest terms and conditions. The latest terms and conditions will always be posted online at https://xnote.com/terms.

Xnote reserves the right to refuse service to anyone at any time for any reason.

  1. WAIVER OF WARRANTY AND LIMITATION OF LIABILITY

  1. UNLESS OTHERWISE STATED IN THE SERVICE ADDENDA: (A) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS ONLY, AND XNOTE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO SERVICES PROVIDED, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) WITHOUT LIMITING THE FOREGOING, XNOTE MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR VIRUS OR MALWARE FREE; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED FROM THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEMS AND/OR MOBILE DEVICE THAT RESULTS FROM THE USE OF ANY SUCH MATERIAL.  

YOUR EXCLUSIVE REMEDY AND XNOTE'S ENTIRE LIABILITY, IF ANY, FOR ANY CLAIMS ARISING OUT OF THE AGREEMENT AND/OR YOUR USE OF THE SERVICES, SHALL BE LIMITED TO THE AMOUNT YOU PAID XNOTE FOR THE SERVICES FOR THE PRECEDING SIX-MONTH PERIOD.

IN NO EVENT SHALL XNOTE, OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SUPPLIERS, OR SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM BODILY HARM, PERSONAL INJURY, LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT XNOTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES, OR INABILITY TO USE THE SERVICES.

ANY LEGAL ACTION ARISING OUT OF ANY ALLEGED FAILURE, MALFUNCTION OR DEFECTS IN XNOTE'S SERVICES SHALL BE BROUGHT WITHIN A PERIOD OF ONE (1) YEAR OF THE OCCURRENCE OR IS DEEMED WAIVED.

IF YOU ARE DISSATISFIED WITH THE TERMS OF THE AGREEMENT OR THE SERVICES, YOUR SOLE REMEDY AND EXPRESS OBLIGATION IS TO STOP USING THE SERVICES. IN THE EVENT YOU FAIL TO STOP USING THE SERVICES AND CLAIMS SOME INJURY AS THE RESULT, YOU AGREE TO INDEMNIFY AND HOLD XNOTE HARMLESS FROM ANY AND ALL LOSSES OR DAMAGE, INCLUDING ATTORNEY'S FEES INCURRED BY XNOTE IN DEFENSE OF ANY ACTION INITIATED BY YOU OR A THIRD PARTY.

SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES.

  1. EMAIL AND SPAM

  1. Spam Mitigation. 

The receipt of unsolicited or unlawful commercial electronic mail messages, otherwise known as spam ("Spam"), adversely affects the use and enjoyment of email services, as well as Xnote's business and its ability to provide email services to customers. Accordingly, You agree that Xnote may take action on Your behalf to mitigate Spam and You grant to Xnote the authority and right to opt-out and/or unsubscribe from receiving any and all Spam emails, sent by any party to Your email address(es), as determined by Xnote. You also grant and hereby assigns to Xnote the authority and right to take any other action, including legal action, to stop the mailing and/or receipt of Spam emails to Your email address(es), and seek all available legal remedies against responsible parties, including monetary damages. You understand that through this assignment of claims, You forgo Your personal right and interest to assert legal claims arising under State or Federal law, including potential claims for monetary relief, resulting from Your receipt of Spam emails. State law claims may arise under State consumer law. As examples, the Utah Consumer Sales Practices Act and the Utah Commercial Email Act, which allows for the recovery of monetary damages for certain consumer transactions and may apply to certain Spam practices. Xnote's Spam mitigation effort may require the preservation and disclosure of Your emails, as well as information contained in the emails, such as, Your name and email address. In most cases, the parties to whom the disclosure is made are already in possession of this information which they used to send You the Spam (i.e., Spam emailers, their attorneys, etc.), but disclosure may also be made to attorneys, law enforcement, the court and court personnel. Xnote will make every effort to obfuscate any personally identifying information included in the Spam emails or ensure that any information is protected by a protective order. If You do not wish to have Your email address(es) or domains included in the Spam mitigation effort, or do not desire to assign Your right to claims to Xnote, it is Your responsibility to contact Xnote at legal@xnote.com, Subject Line: "OPT-OUT." You may request information from Xnote regarding any action taken by Xnote described above, which information will not be unreasonably withheld.

  1. Zero Tolerance. 

To both aid in the fight against Spam, and to keep Xnote's mail servers off Internet blacklists, Xnote has zero tolerance in regards to Your sending unsolicited (email/fax/pages/news) messages, or bulk messages (i.e., more than 10 messages containing substantially similar, commercial content in less than one minute). If Xnote receives complaints about Your spamming, Your account will be canceled unless You can prove the recipient requested bulk email from You. You may also face legal action and confess to liquidated damages in the amount of $50 per incident (i.e., one email message constituting one incident) and $100 per hour per employee whose time was used to address the issue. While bulk email is the primary concern, Xnote's Spam policy applies to all other forms of bulk communications.

  1. HIPAA

Xnote's email service is not HIPAA compliant. HIPAA compliance will require additional add-on features.

  1. INTELLECTUAL PROPERTY

  1. For purposes of this Agreement, "Content and Material" is defined as any information, communications, software, published works, photos, video, graphics, music, sounds, code, or other material that can be viewed or heard by users while using Xnote's website or services, and which was created by Xnote. All of the Content and Material is subject to United States and international copyright, trade dress, trademark and/or other intellectual property laws with all rights thereto held by Xnote. Use of any Content and Material without prior written authorization by Xnote is strictly prohibited and may subject You to liability.

  1. If You know of, or suspect, copyright or trademark infringement or other unauthorized or improper use of Xnote's property by others, including but not limited to uses for commercial purposes, please notify Xnote

  1. Digital Millennium Copyright Act. Xnote has not taken and will not take content or material from You or any third party unless it has been assigned to Xnote pursuant to law. However, if You are a copyright holder and have a good faith belief that any content or materials posted on this Website infringes Your copyright, please send to Xnote Your notification of claimed infringement requesting the material to be removed or blocked to the following:

Xnote, LLC
100 W Canyon Crest Rd

Suite 203

Alpine, UT 84004
Legal Response Email: legal@xnote.com

Your notice must contain the following: (a) Reasonably sufficient details about the nature of the copyrighted work in question, or, in the case of multiple alleged infringements, a representative list of such works, including title(s), author(s), any U.S. Copyright Registration number(s), URL(s) etc.; (b) Reasonably sufficient details to enable us to identify and locate the material that is allegedly infringing the copyright holder's work(s) (for example, file name or URL of the page(s) that contain(s) the material); (c) Your contact information so that we can make contact with You (including for example, your address, telephone number, and email address); (d) A statement that You have a good faith belief that the use of the material identified above in "b" is not authorized by the copyright owner, its agent, or the law; (e) A statement, under penalty of perjury, that the information in the notification is accurate and that You are authorized to act on behalf of the copyright owner; and (f) Your signature. Prior to sending us notice, You may wish to consult a lawyer to determine Your rights and legal obligations under applicable laws. Nothing here or anywhere on this Website is intended as a substitute for qualified legal advice. You also acknowledge and agree that upon receipt of a notice of a claim of copyright infringement, we may temporarily or permanently remove the identified materials from the Website without liability to you or any other party.

  1. COMMUNICATIONS DECENCY ACT.

Xnote does not control or monitor the content users of the Service. Xnote invokes Section 230 of the Communications Decency Act (47 U.S.C. § 230) (hereinafter "CDA") and Utah Code 76-9-203. Xnote advises You that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist You in limiting access to material that is harmful to minors. Pursuant to the CDA, Xnote takes no responsibility and assumes no liability for any content You may view while utilizing Xnote's Services. Xnote has no obligation to monitor, edit or remove content that may be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or in violation of any third-party's intellectual property rights.

  1. INDEMNITY

You agrees to defend, indemnify, and hold Xnote (and its directors, officers, employees, affiliates, agents, contractors, suppliers, service providers or licensors) harmless to the fullest extent permitted in law or equity from all liabilities, demands, claims, and expenses, including attorneys' fees that may arise from Your use or misuse of Xnote's website, the Services, Your breach of the Agreement, and/or Your violation of any law or the rights of a third-party. Xnote will provide notice to You of any such demand, claim, suit, or proceeding. Xnote reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will cooperate with Xnote in asserting any available defenses.

  1. GENERAL TERMS OF SERVICE

  1. Except as otherwise stated herein, Xnote will exercise no control whatsoever over the content of any information passing through its servers.

  1. You are responsible for maintaining secure, unique account passwords and to update them regularly.

  1. You will not use the Services: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, disability, or gender; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code; (h) to collect or track the personal identification information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of this Xnote's network, or any related network, website, or other websites, or the Internet.

  1. You may not: (a) resell or make commercial use of the Services; (b) modify, adapt, translate or convert into another form any portion of the Services or Xnote's website; (c) copy, reproduce, download, display, perform, transfer, transmit or publish any portion of the Services or Xnote's website by any means or in any form; (d) access the Services or Xnote's website from any jurisdiction where doing so would be illegal.

  1. You will comply with all laws pertaining to privacy, data collection and protection, intellectual property, contract and other applicable laws, including but not limited to those laws in the jurisdiction in which you reside or from which you use the Services.

  1. Any and all access to other networks via Xnote must be in compliance with all policies and rules of those networks. This applies to any other network that Xnote attaches to, if any. Such networks may be governed by their own terms.

  1. GENERAL PROVISIONS

  1. Transferability. You may not sell, assign or transfer Services without the prior written consent of Xnote. Xnote may, at any time, sell, assign or transfer any customer Agreements and any customer accounts to a third-party provider with no notice.

  1. Waiver. Any failure by Xnote to enforce or exercise any provision of the Agreement or related rights shall not constitute a waiver of that right or provision. Xnote's rights and remedies under the Agreement are cumulative, and the exercise of a right or recovery of a remedy shall not limit or prevent Xnote's exercise of another right or recover another remedy allowed under the Agreement, at law or in equity.

  1. Modification. THESE TERMS AND CONDITIONS CANNOT BE MODIFIED EXCEPT BY WRITTEN AMENDMENT BY THE PARTIES. NO AGENT, EMPLOYEE OR REPRESENTATIVE OF XNOTE HAS THE AUTHORITY TO BIND THE PARTIES TO ANY REPRESENTATION OR WARRANTY UNLESS SUCH IS SPECIFICALLY INCLUDED IN THESE TERMS AND CONDITIONS, THE MSA, OR THE SERVICE ADDENDA.

  1. Force Majeure. In addition to any excuse provided by applicable law, Xnote shall be excused from liability for its failure to honor any obligations arising from any event beyond Xnote's reasonable control, whether or not foreseeable by either party, including but not limited to: labor disturbance, war, fire, accident, adverse weather, governmental act or regulation, epidemic, pandemic, and any other causes or events beyond Xnote's reasonable control, whether or not similar to those which are enumerated above.

  1. CONTACT US

Xnote, LLC
100 W Canyon Crest Rd

Suite 203

Alpine, UT 84004
Legal: legal@xnote.com
Sales: info@xnote.com