Terms of Service
TERMS OF SERVICE
These Terms of Service are effective from Feb 01, 2023.
This website is operated by xpoko. Throughout the site, the terms “we”, “us” and “our” refer to xpoko. xpoko offers this website, including all information, tools, and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies, and notices stated here.
By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.
Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
Our store is hosted on Shopify Inc. They provide us with an online e-commerce platform that allows us to sell our products and services to you.
- Our Details
- Your Responsibility For Others Who Access Our Website Using Your Device Or Internet Connection
- Other Documents Governing Your Use Of Our Website
- Availability Of Our Website
- Your Account Details
- Ownership Of Material On Our Website
- Information And Content On Our Website Provided On Non-Reliance Basis
- Permitted Use Of Materials On Our Website
- Prohibited Uses Of Our Website
- Viruses And Other Harmful Content
- Links To Other Websites
- Links To Our Website
- Exclusions And Limitations Of Liability
- Age Restrictions On Use Of Our Website
- Mobile Messaging Program Terms Of Service
- Governing Law And Jurisdiction
- Copyright, Credit, And Logo
1. Our Details
- xpoko, LLC (we, our, and us) operates the website.
- Our contact email address is Support@xpoko.com
2. Your Responsibility For Others Who Access Our Website Using Your Device Or Internet Connection
You must ensure that any persons who access our website on your computer(s) or device(s), or who are permitted or able to access our website on your computer(s) or device(s), or who use your internet connection, are aware of these Terms of Service and all other documentation referred to in them, and that such persons also agree to be bound by and to comply with these Terms of Service. If for any reason whatsoever, such persons do not agree to these Terms of Service or do not wish to be bound by them, they must not access or use our website, and you must not permit them to do so.
3. Other Documents Governing Your Use Of Our Website
- If you do not agree to the terms set out in these Terms of Service, you must not use our website.
4. Availability Of Our Website
- We make no representations and provide no warranties that:
- the website will be made available at any specific time or from any specific geographical location;
- your access to the website will be continuous or uninterrupted; or
- the website will be accessible or optimized on all browsers, computers, tablets, phones, or viewing platforms.
- We reserve the right to suspend access to all or part of the website for any reason, including for business or operational reasons, such as improving the appearance or functionality of the website, content updates, periodic maintenance, or to resolve any issues that we become aware of. Wherever we anticipate that we need to suspend access to the website for a considerable period of time, we will try to provide you with prior notice where reasonably practicable.
- Our website is provided for users all over the world. Although it may be possible to access the website from any country, we make no representation that our website is compliant with any legal requirements in force in any jurisdiction other than the UK, or that the content available on the website will be appropriate for users in other countries or states.
- to reflect any changes in the way we carry out our business;
- to account for any changes we make to our website, including, without limitation, any new features or functionality we provide, any adjustments to the means by which we provide notices to you, or any changes in the content, purpose, or availability of the website;
- to accurately describe our current data-processing activities so that you are kept up to date with our latest practices;
- to ensure that our documentation complies and remains compliant with any and all current and future applicable laws, regulations, and official guidance.
- If required by law, we will provide you with notice of any changes in these Terms of Service or the other documentation referred to in them by posting a notice on the website and/or by posting an updated version of these Terms of Service or other such documentation on our website with a new effective date stated at the beginning of them.
6. Your Account Details
- If we provide you with account information such as a user name, identification number, account code, and/or password, you must keep such information confidential and secret and not disclose it to anyone. All account information is provided for use of the named account holder only, and not for any other person. You are responsible for any consequences of unauthorized access to your account due to any disclosure of your account information to any third party.
- Where we provide you with the option to select your own login information, including a password, we recommend that you supply login information unique to your own use of this website, and do not use information from other accounts you may hold with other websites or any easily discoverable information about you. You are responsible for any consequences of unauthorized access to your account due to any disclosure of your login information to any third party.
- You must never use another user’s account without permission. When creating your account, you must provide accurate and complete information. You agree that you will not solicit, collect or use the login credentials of other individuals. We prohibit the creation of, and you agree that you will not create, an account for anyone other than yourself. You also represent that all information you provide to us upon registration and at all other times will be true, accurate, current, and complete. You agree to update your information as necessary to maintain its truth and accuracy.
- We reserve the right to withdraw access to your account without notice for any actual or suspected breach of these Terms of Service or any other documentation referred to in them, including, without limitation, where we suspect that there has been unauthorized access to your account or any unauthorized disclosure of your login information.
- If you know or suspect that the confidentiality of your login information has been compromised, for example, by the disclosure of such information to any third party, you must immediately change your password. If you are unable to change your password, you must immediately notify us by email, at Support@xpoko.com
7. Ownership Of Material On Our Website
- All trademarks, service marks, trade names, logos, copyright, and other intellectual property rights in our website and the content are either owned by us or licensed to us. All such rights are protected by intellectual property laws around the world, and all rights are reserved. Any use of the website and its contents, other than as specifically authorized herein, is strictly prohibited. Any rights not expressly granted herein are reserved by us.
- The trademarks, service marks, trade names, logos and other branding owned by third parties and used or displayed on or via our website (collectively, “Third Party Mark(s)”) may be trademarks of their respective owners, who may or may not endorse or be affiliated with or connected with us. Except as expressly provided in these Terms of Service, or in terms provided by the owner of a Third Party Mark, nothing in these Terms of Service or on or via the website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of our or any Third Party Marks that are used or displayed on the website, without the respective owner’s prior written permission, in each instance. All goodwill generated from the use of our trademarks will benefit us exclusively.
8. Information And Content On Our Website Provided On Non-Reliance Basis
- Our website is made available to you in order to provide you with general information about us, our business, and any products or services that we offer from time to time. We do not make our website available for any other purposes, except as expressly provided in these Terms of Service.
- The content on our website is not intended to be construed as advice. You must not rely on any of the content of our website for any purposes whatsoever, and you must seek your own independent professional advice before deciding to take any course of action on the basis, whether in whole or in part, of any of the content available on our website at any time.
- We make no representations and provide no warranties whatsoever, whether express or implied, that any of the content or materials available on our website from time to time are accurate, up to date, or complete.
9. Permitted Use Of Materials On Our Website
- The content on our website is provided for your personal, private, and non-commercial use only. You may print or share the content from our website for lawful personal, private and non-commercial purposes, and you may also make others within your organization aware of the content on our website. You may not otherwise extract, reproduce or distribute the content of our website without our prior written consent.
- Whenever you print, download, share or pass on content from our website to others, you must not make any additions or deletions or otherwise modify any text from our website, you must not alter or change any images, media, or graphics from our website in any way, you may not remove any accompanying text from such images, media or graphics, and you must ensure that all content passed on to any third party is an accurate representation of the content as it appears on our website.
- You are prohibited from using any robots, spiders, data mining or scraping technology, or any similar third-party tools for the extraction or reproduction of any data or content from our website without our prior written consent.
- Whenever you pass on any content or materials from our website to anyone, you must acknowledge us as the authors of such content or materials (or any other authors wherever credited by us) at the time when you pass on such content or materials.
10. Prohibited Uses Of Our Website
- You must not, without our prior written consent, access, interfere with, damage, or disrupt in any way our website or any part of it, our systems, any of our hardware or equipment or any networks on which our website is hosted, any software that we use to create or modify the website or to make the website available to you, or any hardware, equipment, network, server, software or technology owned or operated by us or any third party.
- You must use our website for lawful purposes only and in accordance with these Terms of Service. You must not use our website:
- for any purpose that is unlawful or that in any way breaches any applicable laws or regulations, whether local, national, or international;
- for any fraudulent purposes whatsoever;
- to conduct any unsolicited or unauthorized advertising or direct or indirect marketing to anyone by any means, or to otherwise spam, communicate with or market to anyone any goods, services, or business not authorized by us;
- to upload, host or transmit any viruses, malware, adware, spyware, worms, Trojan horses, keystroke loggers, spyware, logic bombs, time bombs, or any other harmful programs or code which could adversely affect the use or operation of the website, our hardware or systems, or the computers, tablets, phones or other devices of any users or other third parties, or to upload any content or materials containing any such content;
- to communicate with, harm, or attempt to harm children in any way; or
- You must not submit any information about you to us if you are under the age of 18, or about any other person who is either:
- under the age of 18; or
- if they are aged 18 or above, where you have not received their prior written consent to submit information about them to us.
- You must not submit to us any information which is considered ‘sensitive personal information’. ‘Sensitive personal information’ is information about you or any other person which reveals your or their racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership or which is genetic data, biometric data, information which concerns your or their health, sex life or sexual orientation.
- If you accidentally or intentionally submit such information to us, you will be considered to have consented to our processing of that information on the basis of Article 9(2)(a) of the General Data Protection Regulation (Regulation (EU) 2016/769).
11. Viruses And Other Harmful Content
- We do not guarantee that our website does not contain viruses or other malicious software. However, we do make reasonable efforts to prevent such viruses or bugs from being uploaded to our website.
- We shall not be responsible for any bugs or viruses on our website, or any software that might be transferred to your computer from our website, or any consequences which the presence or operation of such programs may have.
- You must ensure that you have in place up-to-date and effective anti-virus protection on your computer or other browsing devices.
- You must not upload or otherwise introduce to our website any viruses, malware, spyware, adware, Trojan horses, worms, logic bombs, time bombs, keystroke loggers, or any other programs or code that is harmful or malicious.
- You must not use any third parties, software, or technology to attempt to gain unauthorized access to our website, our servers, systems, hardware, software, or data.
- You must not attempt to perform any denial of service type attack on our website.
- We may report any breach or suspected breach of this clause 11 (Viruses and other harmful content) to the relevant authorities and may disclose your identity.
12. Links To Other Websites
- Links to third-party content or websites may appear on our website from time to time. We are not responsible for the content of any websites accessible via any link(s) on our website. All content on third party websites is outside of our control, and we do not represent or warrant that such content is related to us or our website, suitable or appropriate for use or viewing, lawful or accurate.
13. Links To Our Website
- You may not link to our website without our prior written consent.
- Where you have obtained our consent to link to our website:
- wherever you post a link to our website on any other website, you agree that you will do so in an appropriate manner, and not in any way which is defamatory or disparaging towards us, which misrepresents us or our business, or which causes any harm whatsoever to us or our business; and
- you must not link to our website in order to suggest any form of the joint venture, partnership, collaboration, affiliation, business relationship, approval or endorsement in connection with us where none exists and in any event, without having first obtained our prior written consent.
- We may withdraw permission to link to our website at any time. In the event that we withdraw permission to link to our website and inform you of the same, you must immediately remove or cause to be removed any links to our website.
14. Exclusions And Limitations Of Liability
We do not exclude our liability to you where it would be unlawful to do so, for example, for death or personal injury caused by our negligence. If applicable law does not allow all or any part of the below limitations of liability to apply to you, the limitations will apply to you only to the maximum extent permitted by applicable law.
If you purchase goods or services from our website, different exclusions of liability may apply. These are contained in our terms of sale.
- SUBJECT TO THE AFORESAID, IN NO EVENT SHALL WE (INCLUDING OUR PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS) UNDER ANY CIRCUMSTANCES WHATSOEVER BE LIABLE TO YOU FOR ANY LOSS, DAMAGE (WHETHER DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR OTHERWISE) COSTS, EXPENSES, LIABILITIES OR PENALTIES, WHETHER IN CONTRACT, TORT, BREACH OF STATUTORY DUTY OR OTHERWISE, WHETHER FORESEEABLE OR UNKNOWN, ARISING FROM, IN CONNECTION WITH OR RELATING TO:
- YOUR USE OF OUR WEBSITE;
- ANY CORRUPTION OR LOSS OF DATA;
- ANY INABILITY TO ACCESS OUR WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY INTERRUPTIONS, SUSPENSION OR WITHDRAWAL OF OUR WEBSITE (FOR ANY REASON WHATSOEVER);
- ANY USE YOU MAKE OF ANY CONTENT OR MATERIALS ON OUR WEBSITE, INCLUDING ANY RELIANCE YOU MAKE ON SUCH CONTENT OR MATERIAL;
- ANY LOSS OF SAVINGS, PROFITS, SALES, BUSINESS OR REVENUE;
- ANY LOSS OF REPUTATION OR GOODWILL;
- ANY LOSS OF SAVINGS;
- ANY LOSS OF A CHANCE OR OPPORTUNITY; OR
- ANY OTHER SECONDARY, CONSEQUENTIAL OR INDIRECT LOSSES,
AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, WITHOUT LIMITATION, YOU ASSUME AND SHALL BE LIABLE FOR THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY SUCH LOSS, DAMAGE, COSTS, EXPENSES, LIABILITIES OR PENALTIES ARISING.
- WE SHALL NOT BE LIABLE FOR ANY DAMAGE THAT YOU COULD HAVE AVOIDED BY FOLLOWING OUR ADVICE TO APPLY AN UPDATE OFFERED TO YOU FREE OF CHARGE OR FOR DAMAGE THAT WAS CAUSED BY YOU FAILING TO CORRECTLY FOLLOW INSTALLATION INSTRUCTIONS OR TO HAVE IN PLACE THE MINIMUM SYSTEM REQUIREMENTS ADVISED BY US.
- YOU SPECIFICALLY AGREE THAT WE SHALL NOT BE LIABLE FOR ANY CONTENT 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.
- YOU AGREE THAT IN THE EVENT THAT YOU INCUR ANY DAMAGES, LOSSES, OR INJURIES ARISING OUT OF, OR IN CONNECTION WITH, OUR ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEBSITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY US, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEBSITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY US.
- TO THE EXTENT THAT ANY OF THE PROVISIONS OF THIS CLAUSE 14 (EXCLUSIONS AND LIMITATIONS OF LIABILITY) ARE UNENFORCEABLE AS OUTRIGHT EXCLUSIONS OF LIABILITY, THEY SHALL BE CONSTRUED AS LIMITATIONS ON LIABILITY, LIMITING OUR LIABILITY TO YOU TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- You (and also any third party for or on behalf of whom you operate an account or activity on the website) agree to defend (at our request), indemnify and hold us harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and attorneys’ fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the website or those conducted on your behalf):
- your uploads, access to or use of the website;
- your violation of any third-party right, including, without limitation, any intellectual property right, publicity, confidentiality, property or privacy right;
- your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative, and legislative authorities; or
- any misrepresentation made by you.
- You will cooperate as fully required by us in the defense of any claim. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not, in any event, settle any claim without our prior written consent.
The website is provided on an “as is”, “as available” and “with all faults” basis. To the fullest extent permissible by law, we do not make any representations or warranties or endorsements of any kind whatsoever, express or implied, as to:
- THE SERVICE;
- THE WEBSITE CONTENT;
- USER CONTENT; OR
- SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO THE WEBSITE.
In addition, we hereby disclaim all warranties, express or implied, including, but not limited to, the warranties of merchantability, fitness for a particular purpose, non-infringement, title, custom, trade, quiet enjoyment, system integration, and freedom from computer virus.
- By accessing or using the website you represent and warrant that your activities are lawful in every jurisdiction where you access or use the service.
- We do not endorse the content and specifically disclaim any responsibility or liability to any person or entity for any loss, damage (whether actual, consequential, punitive, or otherwise), injury, claim, liability, or other cause of action of any kind or character based upon or resulting from any content.
17. Age Restrictions On Use Of Our Website
By using this site, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.
18. Mobile Messaging Program Terms Of Service
- Opt-In - Regardless of the opt-in method you utilized to join the Program, you agree to receive recurring automated marketing and informational text (e.g., SMS, MMS, or RCS) messages from us, including text messages that may be sent using an automatic telephone dialing system, to the mobile telephone number you provided when signing up or any other number that you designate. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Consent to join the program is not a condition of any purchase.
- You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with a text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text-messaging instructions.
- Message & data rates may apply. The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
- The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with us. We reserve the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. We also reserve the right to change the shortcode or phone number from which messages are sent.
- Opt-Out - If you do not wish to continue participating in the Program or no longer agree to these terms, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from us in order to opt-out of the Program. You may receive an additional mobile message confirming your decision to opt-out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out and agree that xpoko, Inc. and its service providers will have no liability for failing to honor such requests. If you unsubscribe from one of our text message programs, you may continue to receive text messages from us through any other programs you have joined until you separately unsubscribe from those programs.
- Changes to Terms - We reserve the right to terminate or change the Program at any time. We also reserve the right to change these Terms at any time and such changes will be effective immediately upon posting. Your continued enrollment following such changes shall constitute your acceptance of such changes.
- Duty to Notify and Indemnify.
- If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the Opt-Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these Terms of Service. You further agree that, if you discontinue the use of your mobile telephone number without notifying us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by the individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
- Disclaimer of Warranty - The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage, or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of our control. We are not liable for delayed or undelivered mobile messages.
- Contact - For support regarding the Program, text “HELP” to the number you received messages from or email us at Support@xpoko.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt-outs must be submitted in accordance with the procedures set forth above.
- The courts of the state of California shall have exclusive jurisdiction over any claims or disputes arising from or in relation to these Terms of Service and any documents they refer to.
xpoko Messaging Terms & Conditions
You agree to receive recurring automated marketing and informational text (e.g., SMS and MMS) messages from xpoko, including text messages that may be sent using an automatic telephone dialing system, to the mobile telephone number you provided when signing up or any other number that you designate. Consent to receive automated marketing text messages is not a condition of any purchase. Msg & Data rates may apply.
Message frequency will vary. xpoko reserves the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. xpoko also reserves the right to change the shortcode or phone number from which messages are sent.
Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas. xpoko, its service providers, and the mobile carriers supported by the program are not liable for delayed or undelivered messages.
After texting STOP to our message provider you will receive one additional message confirming that your request has been processed. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP keyword command and agree that xpoko and its service providers will have no liability for failing to honor such requests. If you unsubscribe from one of our text message programs, you may continue to receive text messages from xpoko through any other programs you have joined until you separately unsubscribe from those programs.
Mobile Phone Number Change
In the event that you change or deactivate your mobile phone number, you agree to notify xpoko by mailing to us at firstname.lastname@example.org or submit a form by visiting https://xpoko.com/pages/contact-us.
If you are experiencing any problems, please mail us at email@example.com or submit a form by visiting https://xpoko.com/pages/contact-us about your problem or your request for support.
- General. In the interest of resolving disputes between you and xpoko in the most expedient and cost-effective manner, you and xpokoagree that any dispute arising out of or in any way related to these messaging terms and conditions ("Messaging Terms") or your receipt of text messages from xpoko or its service providers will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Messaging Terms, or your receipt of text messages from xpoko or its service providers whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory and regardless of when a claim arises. YOU UNDERSTAND AND AGREE THAT, BY AGREEING TO THESE MESSAGING TERMS, YOU AND xpoko ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THESE MESSAGING TERMS SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
- Exceptions. Above, nothing in these Messaging Terms will be deemed to waive, preclude, or otherwise limit the right of you or xpoko to:
- bring an individual action in small claims court;
- pursue enforcement action through the applicable federal, state, or local agency if that action is available;
- seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or
- file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and xpoko will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer-Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Messaging Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting xpoko. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice; Process. If you or xpoko intends to seek arbitration, then the party seeking arbitration must first send a written notice of the dispute to the other party by U.S. Mail ("Notice"). The Notice must:
- (i) describe the nature and basis of the claim or dispute; and
- (ii) set forth the specific relief sought ("Demand"). You and xpoko will make good faith efforts to resolve the claim directly, but if you and xpoko do not reach an agreement to do so within 30 days after the Notice is received, you or xpoko may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Kylie Cosmetics must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award if any.
- Fees. If you commence arbitration in accordance with these Messaging Terms, xpoko will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. If the claim is for $15,000 or less, you may choose whether the arbitration will be conducted:
- (i) solely on the basis of documents submitted to the arbitrator;
- (ii) through a non-appearance based telephone hearing; or
- (iii) by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse xpoko for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. xpoko agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from you or xpoko made within 14 days of the arbitrator's ruling on the merits.
- No Class Actions. YOU AND xpoko AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and xpoko agree otherwise in a signed writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. Notwithstanding anything to the contrary in these Messaging Terms, if xpoko makes any future change to this arbitration provision, other than a change to xpoko address for Notice, you may reject the change by sending us written notice within 30 days of the change to xpoko address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and xpoko.
- Enforceability. If an arbitrator decides that applicable law precludes enforcement of any of the limitations of subsection above (addressing class, representative, and consolidated proceedings) as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and brought in court. If any other provision of these Messaging Terms is found to be unenforceable, the applicable provision shall be deemed stricken and the remainder of these Messaging Terms shall remain in full force and effect.
Changes to Messaging Terms
We reserve the right to terminate or change our messaging program at any time. We also reserve the right to change these Messaging Terms at any time and such changes will be effective immediately upon posting. Your continued enrollment following such changes shall constitute your acceptance of such changes.
19. Governing Law And Jurisdiction
- These Terms of Service and any separate agreements whereby we provide you shall be governed by and construed in accordance with the laws of the UK.
20. Copyright, Credit And Logo
- The copyright in these Terms of Service is either owned by or licensed to, us and is protected by copyright laws around the world and copyright protection software. Unless expressly indicated otherwise, all intellectual property rights in this document and elsewhere on our website, including any content on our website, are reserved.