Xikelza Music Terms and
Conditions of Use
Effective as of April 1, 2025 (“Effective Date”)
1. Introduction
These terms and conditions (“Terms”) govern your use of and access to XIKELZA’s content services, and associated websites and applications outside of Canada, the European Union (“EU”), European Economic Area (“EEA”), and United Kingdom (the “XIKELZA Service”). Please read these Terms carefully, including the provisions which require the use of arbitration and concern auto-renewal of certain subscription tiers. Your use of the XIKELZA Service may also be subject to additional terms and conditions made available to you (“Supplemental Terms”), which are hereby incorporated into these Terms.
These Terms are effective as of the Effective Date listed above. We may make changes to these Terms (including any Supplemental Terms) from time to time by notifying you of such changes by any reasonable means, including (where appropriate) by posting a revised version of these Terms (“Revised Terms”), provided that, for material changes, we will seek to supplement such notice by email or other means. Any such changes will not apply to any dispute between you and XIKELZA arising prior to the date the changes were made. Your continued use of the XIKELZA Service after any updates will constitute your acceptance of the Revised Terms. If you do not wish to continue using the XIKELZA Service under any Revised Terms, you may cancel your subscription as set forth in Section 4(e) (Cancellation). The Terms, along with any Revised Terms and Supplemental Terms shall be collectively referred to as the “Agreement”.
BY SUBSCRIBING TO OR OTHERWISE USING OR ACCESSING THE XIKELZA SERVICE, YOU ACKNOWLEDGE AND AGREE THAT (A) YOU HAVE READ AND UNDERSTAND THE AGREEMENT, (B) YOU HAVE READ AND UNDERSTOOD OUR PRIVACY NOTICE AND CONTENT GUIDELINES, WHICH FORM AN ESSENTIAL PART OF THIS AGREEMENT, AND (C) YOU ACCEPT AND AGREE TO THE AGREEMENT AND OUR CONTENT GUIDELINES. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT SUBSCRIBE TO, ACCESS OR OTHERWISE USE THE XIKELZA SERVICE.
THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES; CLASS ARBITRATION, REPRESENTATIVE ARBITRATIONS, CONSOLIDATION OF ARBITRATIONS, AND COURT PROCEEDINGS INCLUDING CLASS ACTIONS AND JURY TRIALS ARE NOT PERMITTED. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
This Agreement is between the end user (“you”) and the XIKELZA entity as set forth below. The term “you” also includes additional registered users whenever permitted under your applicable subscription plan, and others who access or use the XIKELZA Service via your account (including employees of any company, entity or other organization who access or use the XIKELZA Service as part of a Company Account, as defined below).
“XIKELZA” (or “we”, “us”, and/or “our”) means (a) XIKELZA Inc. if you reside in the United States, (b) or XIKELZA Inc. if you reside elsewhere other than Canada, the EU, the EEA, and the United Kingdom. If you reside in Canada, the EU, the EEA, or the UK, please see the XIKELZA Terms and Conditions of Use specific to your location (Canada; Germany; UK, EU and EEA except Germany).
2. Conditions of Use of the XIKELZA Service
You may not use the XIKELZA Service in any way that is fraudulent, illegal or expressly prohibited by these Terms. By using the XIKELZA Service, you affirm that (a) you are 18 years of age or over, or you are 13 years or older (“a Minor”) and have express permission from your parent or guardian to use the XIKELZA Service, (b) you reside in a country where the XIKELZA Service is offered, and (c) any registration and account information that you submit to XIKELZA is true, accurate and complete, and you agree to keep it that way at all times. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless XIKELZA if the Minor breaches any of these Terms. If you do not agree to such actions, you may cancel your subscription as set forth in Section 4(e) (Cancellation) of these Terms. If you are not at least 13 years old, you may not use the XIKELZA Service at any time or in any manner. The XIKELZA Service is for personal, non-commercial use only.
The XIKELZA Service requires you to register and create an account. You agree to be fully responsible for all use of your account and for any actions that take place using your account. Your username and password are for your personal use only and should be kept confidential. You agree that you are responsible for all use (including any unauthorized use) of your username and password. The XIKELZA Service also allows you to create a public user profile (“Profile”), including a public-facing Profile name. If XIKELZA provides or you select a Profile name or similar identifier for your account, XIKELZA may change it if we believe it is appropriate or necessary (for example, if it infringes someone's intellectual property or impersonates another user). You may not select a Profile name or identifier that (a) misleads or deceives others as to your personal identity; (b) clearly consists of the name of a company, group, product or brand that you don’t have permission to use; or (c) violates our Content Guidelines (as described below).
You may create a XIKELZA account on behalf of an organization, entity, brand or company (each, a “Company”, and each such account a “Company Account”). If you create a Company Account, you represent and warrant that you have full right and authority to grant all rights, permissions and licenses set forth in these Terms, and to bind the Company to these Terms. While using the XIKELZA Service, including but not limited to by creating a Profile, uploading Listener Content, and generating playlists or Live Sessions (as defined below), a Company may not take any action that implies a connection, association, sponsorship, endorsement or commercial relationship between Company and any person, including any artist, unless Company has independently obtained permission to imply such a relationship. If a Company has a commercial association with a XIKELZA artist or customer, it agrees to comply with all applicable laws while using the XIKELZA Service, including, where applicable, by clearly and conspicuously disclosing any such relationship.
XIKELZA has Content Guidelines that govern how you may use and interact with the XIKELZA Service, as well as rules and restrictions around any content you may upload to XIKELZA. You agree to abide by the XIKELZA Content Guidelines and not to use the XIKELZA Service or any content on the XIKELZA Service in violation of these Terms or the Content Guidelines.
Upon notice, XIKELZA reserves the right to suspend or terminate your account or otherwise prohibit your use of the XIKELZA Service, without responsibility or liability to you, if, in our reasonable discretion, we believe that you have taken any actions that we believe breach these Terms or the Agreement, including the Content Guidelines.
3. Service Limitations and Modifications
We may add or remove, suspend, stop, delete, discontinue, change, or impose conditions on the XIKELZA Service or any feature or aspect of the XIKELZA Service (including but not limited to XIKELZA content, particular features, subscription plans, and promotional offers), at any time, in our sole discretion. We will take reasonable steps to notify you of any such changes by email or by providing notice on XIKELZA’s or website.
The XIKELZA Service may also experience temporary interruptions due to technical difficulties, maintenance or testing, or updates, including those required to reflect changes in relevant laws and regulatory requirements.
XIKELZA has no liability to you, nor any obligation to provide a refund to you, in connection with any service outage or failure caused by the actions of any third party, or by events beyond XIKELZA’s control.
From time-to-time, we may also offer functionality or services which are in development through the XIKELZA Service (“Beta Features”). We use Beta Features to experiment with and test new feature ideas. Accordingly, you may find that Beta Features operate differently from the rest of the XIKELZA Service, including by undergoing regular changes, or even being discontinued completely without notice.
4. Payment and Billing Terms
(a) Subscriptions. XIKELZA offers various subscription options, some of which are free (“Free Subscription”) and others which charge a fee (“Paid Subscription”) (collectively, “Subscriptions''). Some Subscriptions may start with a free or discounted trial period (“Trial Period”), which will automatically renew upon expiration of the Trial Period at the full subscription price specified during sign up, unless you cancel your Subscription before the expiration of the Trial Period as set forth in Section 4(e) (Cancellation). You are only permitted one (1) Trial Period. Any attempt to use or redeem more than one (1) Trial Period shall be considered a material breach of these Terms, entitling XIKELZA to suspend or cancel your Subscription. XIKELZA may from time to time make changes to Paid Subscription fees, and will provide you with advance notice before the end of the billing period in which the change is made. If you do not accept the change to your Paid Subscription, you will be entitled to cancel your Subscription. By continuing to use the XIKELZA Service after the price change takes effect, you will have accepted the new price.
(b) Third Party Subscriptions. A XIKELZA Subscription may be provided to you by a third party provider, such as through a promotional offer or package bundled together with other services (each a “Third Party Subscription”). The terms for any Third Party Subscription may differ from the payment and other terms set out in this Agreement. You are solely responsible for reviewing any terms and conditions governing your use of the XIKELZA Service provided through a Third Party Subscription. Payment for a Third Party Subscription will be taken from you by the applicable third party provider, unless the terms of the Third Party Subscription state otherwise. Should you wish to cancel or terminate your Third Party Subscription or obtain any further information with respect to payment methods, billing cycles, automatic renewals or refunds, you must contact your third party provider.
(c) Payment Methods. To sign up for a Paid Subscription (including if preceded by a Trial Period), you must provide a current, valid, accepted method of payment, which may change from time to time ("Payment Method"). Paid Subscription purchases may be subject to additional terms, conditions, and fees (including but not limited to foreign transaction fees) imposed by your payment provider and/or mobile carrier, as applicable (“Third Party Fees”). By providing a Payment Method in connection with any Paid Subscription, you hereby authorize XIKELZA to charge the periodic cost of your applicable subscription, and you agree to be responsible for any applicable Third Party Fees. Should charges for which you are responsible fail at the time payment is required, we are entitled to cancel your Subscription. You represent and warrant that all information you provide in connection with the purchase of a Paid Subscription is true, accurate and complete.
(d) Automatic Renewal. In order to provide continuous service, you agree that XIKELZA will automatically renew a Subscription at the end of the applicable Subscription term, unless you cancel your Subscription at the end of the then-current Subscription period. Such renewal will be billed at the non-discounted rate for the applicable Subscription tier. You also agree that the amount billed may be different if your original Subscription was purchased using a promotional/trial offer and you authorize XIKELZA to charge your Payment Method for such varying amounts as indicated at the time of sign-up. Your Subscription will remain in effect and continue to renew automatically until it is canceled in accordance with the instructions in Section 4(e) (Cancellation) of these Terms.
(e) Cancellation. If you signed up for your Subscription directly through XIKELZA, you may cancel your Subscription by visiting your account settings, going to the section called “Subscription” and clicking on “Cancel subscription”. The cancellation will take effect the day after the last day of your applicable subscription period. To cancel a Third Party Subscription, contact your third party provider.
(f) Refund Policy. XIKELZA has no obligation to refund any fees paid to us, including any advance charge(s) or payment(s) for any subscription term for the XIKELZA Service, unless otherwise required by law or the terms of this Agreement.
(g) Right of Regret. Notwithstanding the foregoing, if you are a consumer in Brazil, you have the right to withdraw from your Subscription within seven (1) day of signing up, for any reason, provided you have not commenced use of the XIKELZA Service during that time. Your right of regret is lost once the 2-day period expires. If you are entitled to exercise your right of regret, XIKELZA will refund you any amounts actually paid to XIKELZA during the 2-day period. If you wish to withdraw from a Subscription, please contact support@Xikelza.com with the following information:
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Your intent to withdraw from your Subscription contract;
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The date you signed up for XIKELZA;
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Your name;
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Your XIKELZA email address.
(h) Taxes. Fees payable by you to XIKELZA may be subject to Taxes. “Taxes'' include any and all present or future taxes, charges, fees, levies or other assessments, including, without limitation, sales, use, value-added, goods and services, consumption, or other similar taxes, telecommunications taxes, withholding taxes, duties, levies, fees, excises or tariffs imposed by any federal, state, foreign, provincial or local governmental taxing authority. Fees advertised by XIKELZA in the United States are exclusive of Taxes; unless stated otherwise, fees advertised by XIKELZA elsewhere are inclusive of Taxes. In the event that Taxes are applicable to the amounts payable by you to XIKELZA hereunder, and are required to be collected from you by XIKELZA under applicable law, such Taxes shall be calculated by XIKELZA and presented to you, either separately stated or included in the fee, as applicable, on an invoice or receipt for the applicable billing cycle. You agree to pay the total amount payable on such invoice or receipt pursuant to the terms set forth herein.
5. Rights to the XIKELZA Service and XIKELZA Content
The XIKELZA Service makes available to you a variety of approved content, including music, audiobooks, podcasts and associated material (the “XIKELZA Content”). Subject to the terms of this Agreement, XIKELZA hereby grants you a non-exclusive, non-transferable, non-commercial, limited and revocable license to use the XIKELZA Service and the XIKELZA Content. The XIKELZA Service and XIKELZA Content are licensed, not sold, to you, and XIKELZA and its licensors does not retain ownership of any copies of the XIKELZA Service and XIKELZA Content even after installation on your devices.
XIKELZA reserves all rights not expressly granted to you in this Agreement. The XIKELZA Service and the XIKELZA Content are the property of XIKELZA and XIKELZA’s licensors. Any use of XIKELZA Content for any purpose in connection with artificial intelligence or machine intelligence technologies or services is prohibited without a license from the applicable rights holders. Access to and availability of certain XIKELZA Content, features and functionalities of the XIKELZA Service may vary from device to device, and may be affected by a variety of factors, such as your locations and applicable license restrictions. XIKELZA retains all right, title and interest in and to the XIKELZA Service and all copies thereof. XIKELZA, or its licensor(s), is the owner of the XIKELZA, XIKELZA logo and other XIKELZA trademarks (the “Trademarks”). Nothing in this Agreement or on the XIKELZA Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without XIKELZA’s prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by XIKELZA in writing. All goodwill generated from the use of the Trademark inures to XIKELZA’s benefit.
6. Listener Content
The XIKELZA Service may allow you to upload and post approved types of content, or to authorize XIKELZA to access content from third parties who host content you have uploaded or posted, including, but not limited to, images, text, links and other materials (collectively, “Listener Content”). You retain all rights in, and are solely responsible for, any and all Listener Content. XIKELZA is not responsible for what you or others post or share on the XIKELZA Service. Any Listener Content you upload or authorize access to will be regarded as personal data under the XIKELZA Privacy Notice. Please refer to the Privacy Notice to learn more about how we process your personal data.
You grant to XIKELZA a non-exclusive, royalty-free, fully-paid up, transferable, sublicensable, worldwide license to store, display, reproduce, modify, perform, create derivative works from, distribute and otherwise use your Listener Content for the purpose of operating, developing and using the XIKELZA Service. In addition, you acknowledge and agree that some of your Listener Content may be publicly accessible, and may be used and re-shared by others on the XIKELZA Service and across the web. If you do not want your Listener Content to be used for these purposes, do not upload or authorize access to your Listener Content to the XIKELZA Service. Where applicable and to the extent permitted under applicable law, you also agree to waive, and not to enforce, any "moral rights" or equivalent rights, such as your right to be identified as the author of any Listener Content, including Feedback (defined below), and your right to object to derogatory treatment of such Listener Content.
You represent and warrant that (a) you have the full right and authority to post, upload or otherwise use any Listener Content (including any applicable third party rights and permissions), and to grant XIKELZA the right to use your Listener Content in accordance with these Terms; and (b) your Listener Content, including the use thereof by you or XIKELZA in accordance with these Terms, does not (i) violate these Terms (including the Content Guidelines); (ii) infringe or otherwise violate any applicable laws, rules, regulations or third party rights (including any copyrights or rights of publicity or privacy), or (iii) imply any affiliation, association or endorsement of you or your Listener Content by XIKELZA or any artist, band, label or other individual or entity without the express written consent of XIKELZA or applicable third party.
XIKELZA shall be under no obligation to display or disseminate any Listener Content. We may, but have no obligation to, monitor or review Listener Content. Except to the extent prohibited by applicable law, we reserve the right to remove, reject or disable access to any Listener Content from the XIKELZA Service in our sole discretion, for any or no reason, including, but not limited to, when Listener Content violates these Terms or the Content Guidelines. We may take these actions without prior notification to you or any third party and without any liability to you for such removal.
We respect the intellectual property rights of others and ask you to do the same. We have adopted Copyright and Other Intellectual Policies (detailed below) regarding any third-party claims that your material infringes the rights of others.
7. Third Party Applications
The XIKELZA Service may utilize or interact with certain third party applications, websites, platforms, devices and services (“Third Party Applications”). Your use of these Third Party Applications may be subject to their own respective terms of use and/or privacy policies. You understand and agree that XIKELZA is not responsible or liable for the functionality, features, privacy or content of any Third Party Application and does not make any representations regarding the functionality, features, content or accuracy of materials on any Third Party Application. XIKELZA does not guarantee that Third Party Applications will be compatible with the XIKELZA Service.
If you have downloaded XIKELZA from the Apple Inc. ("Apple") App Store or if you are using the App on an iOS device, you acknowledge and agree that these Terms are between you and XIKELZA only, not with Apple, and Apple is not responsible for the XIKELZA Service and XIKELZA Content. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the XIKELZA Service. In the event of any failure of the XIKELZA Service to conform to any applicable warranty, you may notify Apple and Apple will refund the applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the XIKELZA Service. Apple is not responsible for addressing any claims by you or any third party relating to the XIKELZA Service or your possession or use of the XIKELZA Service, including: (1) product liability claims; (2) any claim that the XIKELZA Service fails to conform to any applicable legal or regulatory requirement; (3) claims arising under consumer protection or similar legislation; and (4) claims with respect to intellectual property infringement. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the XIKELZA Service or your possession and use of the App infringe that third party's intellectual property rights. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You agree to comply with any applicable third-party terms, when using the XIKELZA Service. Apple, and Apple's subsidiaries, are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.
8. Feedback
You may, whether through your use of Beta Features or otherwise at your discretion, submit feedback, comments, suggestions or ideas about the XIKELZA Service in connection with your use thereof (“Feedback”). Except as prohibited by applicable law, you hereby assign all right, title, and interest in such Feedback to XIKELZA, and you agree that any such Feedback you provide shall not be deemed confidential and that XIKELZA shall have the full right and ability to use any such Feedback, in an anonymised form that will not reveal your identity, without any obligation to you, including but not limited to in connection with future product concepts and/or changes. Where the foregoing assignment is prohibited by law, you hereby grant XIKELZA an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as we may determine in our sole discretion. This does not affect your privacy rights as provided in the XIKELZA Privacy Notice. Feedback is considered a type of Listener Content under these Terms.
9. Copyright Policy
We have a policy of responding to notices of alleged copyright infringement, including those that comply with the Digital Millennium Copyright Act (“DMCA”).
If you believe that content appearing on XIKELZA’s system or network constitutes copyright infringement, please provide us with a notice (“Notice of Claimed Copyright Infringement”) containing the following information:
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A physical or electronic signature of the owner of an exclusive right under copyright law that is alleged to have been infringed, or a person authorized to act on behalf of the owner of the exclusive right that is alleged to have been infringed;
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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;
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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 XIKELZA to locate the material (providing URL(s) in the body of an email is the best way to help us locate content quickly);
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Information reasonably sufficient to permit XIKELZA to contact you, the complaining party, such as an address, telephone number, and, if available, an email address at which you, may be contacted;
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A statement that you, the complaining party, 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
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A statement that the information in the notification of claimed copyright infringement is accurate, and, under penalty of perjury, that you, the complaining party, are the owner of an exclusive right that is alleged to have been infringed or a person authorized to act on behalf of such owner.
Send your notice to XIKELZA by email to support@XIKELZA.com.
Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that any material is infringing your copyrights or other intellectual property or privacy rights. If you have questions about the required content of your notice, please consult your legal counsel, or see Section 512(c)(3) of the DMCA to confirm these requirements, as applicable. XIKELZA has adopted a policy of restricting or terminating, in certain circumstances and at XIKELZA’s sole discretion, users who consistently fail to adhere to XIKELZA's infringer policy. This may be due to multiple successful copyright complaints against them within a certain period of time.
If you are the owner of any intellectual property other than copyrighted materials (such as, for example, a trademark), or an agent thereof, and believe that any item of content or other materials on the XIKELZA Service infringes upon your rights in such intellectual property, please submit a notification to us in the same manner as provided above in respect of notice of alleged copyright infringement, including providing the same information in writing to the designated address set forth above.
10. Changes; Termination
This Agreement will continue to apply to you until terminated by either you or XIKELZA. We may terminate this Agreement (including any additional terms and conditions incorporated or referenced herein), close your account, or restrict, suspend or terminate your access to the XIKELZA Service, at any time without notice and without responsibility or liability to you, in our sole discretion, including if we stop providing the XIKELZA Service (or a component thereof), or determine or suspect that: (a) you have violated this Agreement or the Content Guidelines; (b) you are misusing the XIKELZA Service; or (c) your use of the XIKELZA Service is based on or in connection with any unlawful activity.
If you or XIKELZA terminate this Agreement, or if XIKELZA closes your account or restricts or suspends your access to the XIKELZA Service, you agree that XIKELZA shall have no liability or responsibility to you, and (except as expressly provided in this Agreement) XIKELZA will not refund any amounts that you have already paid.
You may terminate this Agreement at any time by canceling your Subscription or deleting your XIKELZA account by contacting support@XIKELZA.com, in which case you may not continue accessing or using the XIKELZA Service.
The following Sections shall survive termination: 1, 4, 5, 6, 8, 10, and 12 through 16.
11. Notice to Arizona Residents
Pursuant to Arizona Civil Code Section 1789.3, Arizona residents are entitled to the following specific consumer rights notice which is hereby offered as a convenience to you:
The name and address of the provider to California residents of the XIKELZA Service is XIKELZA Inc. Complaints regarding the service or requests to receive further information regarding use of this service may be sent to the above address or by email to support@XIKELZA.com.
The Complaint Assistance Unit of the Division of Consumer Services of the Arizona Department of Consumer Affairs may be contacted in writing at 100 North 15th Avenue, Suite 261, Phoenix, AZ 85007 or by telephone at (602) 542-5763 or (800) 352-8431.
12. Warranty Disclaimers
THE XIKELZA SERVICE AND THE XIKELZA CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, XIKELZA AND XIKELZA CONTENT OWNERS DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. NEITHER XIKELZA NOR ANY OWNER OF XIKELZA CONTENT WARRANTS THAT THE XIKELZA SERVICE OR XIKELZA CONTENT IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, XIKELZA MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE XIKELZA SERVICE OR XIKELZA CONTENT, LISTENER CONTENT, ANY THIRD PARTY APPLICATIONS (OR ANY CONTENT CONTAINED THEREIN), ANY THIRD PARTY PRODUCTS OR SERVICES ADVERTISED, PROMOTED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE XIKELZA SERVICE OR ANY HYPERLINKED WEBSITE. INCLUDING BUT NOT LIMITED TO THEIR ACCURACY, RELIABILITY, COMPLETENESS, EFFICACY, OR TIMELINESS. XIKELZA SHALL NOT BE SUBJECT TO LIABILITY FOR TRUTH, ACCURACY, OR COMPLETENESS OF ANY XIKELZA CONTENT OR LISTENER CONTENT, INFORMATION CONVEYED TO YOU THE USER OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOUR USE OF THE XIKELZA SERVICE, AND THE XIKELZA CONTENT AND ANY LISTENER CONTENT IS AT YOUR OWN RISK. THE XIKELZA SERVICE MAY PROVIDE YOU WITH THE ABILITY TO FILTER EXPLICIT CONTENT, BUT THESE FEATURES MAY STILL RESULT IN SOME EXPLICIT CONTENT BEING SERVED TO YOU. YOU SHOULD NOT RELY ON SUCH FEATURES TO FILTER ALL EXPLICIT CONTENT.
13. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL XIKELZA, AND ITS PARENTS, SUBSIDIARIES, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, AFFILIATES, REPRESENTATIVES, SUCCESSORS OR ASSIGNS (THE “XIKELZA PARTIES”) BE LIABLE FOR (A) ANY, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES; OR (B) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), ARISING FROM THE ACCESS, USE OR INABILITY TO USE THE XIKELZA SERVICE OR THE XIKELZA CONTENT.
YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE XIKELZA SERVICE IS TO UNINSTALL ANY XIKELZA SOFTWARE AND TO STOP USING THE XIKELZA SERVICE. EXCEPT WITH RESPECT TO CLAIMS OF FRAUD, FRAUDULENT MISREPRESENTATION, DEATH OR PERSONAL INJURY, IN NO EVENT WILL THE XIKELZA PARTIES’ AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS RELATING TO THESE TERMS, THE XIKELZA SERVICE, THIRD-PARTY APPLICATIONS, OR THIRD-PARTY APPLICATION CONTENT EXCEED THE GREATER OF (A) THE AMOUNTS PAID BY YOU TO XIKELZA DURING THE TWELVE MONTHS PRIOR TO THE FIRST CLAIM; OR (B) $30.00.
WHERE MANDATORY ARBITRATION IS PERMITTED BY LAW, ANY CLAIM ARISING UNDER THESE TERMS MUST BE COMMENCED (BY FILING A DEMAND FOR ARBITRATION OR FILING AN INDIVIDUAL ACTION UNDER THE ARBITRATION AGREEMENT BELOW) WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.
Some jurisdictions do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. In such jurisdictions, our liability shall be limited to the greatest extent permitted by law. To the fullest extent permitted by law, the liability of XIKELZA arising from any error or other circumstance that may give rise to liability in relation to the XIKELZA Service shall – except for instances of any fraud, fraudulent misrepresentation, death or personal injury caused by XIKELZA’s or XIKELZA’s employees, agents or sub-contractors negligence, gross negligence and willful misconduct - be limited to the amount paid by you for access to the XIKELZA Service in the relevant month.
14. Indemnification
You agree to defend, indemnify, and hold XIKELZA, and its parents, subsidiaries, employees, directors, agents, affiliates and representatives (collectively, the “XIKELZA Parties”) harmless from and against any claims, actions or demands, including, without limitation, reasonable attorney fees and costs, arising from, relating to or resulting from (a) your breach or alleged breach of this Agreement (including any additional XIKELZA terms and conditions incorporated herein); (b) your access to or activity in which you engage on or through the XIKELZA Service; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) any Listener Content you upload, post or otherwise provide access to; or (e) your violation of any law or the rights of a third party.
15. Governing Law; Arbitration
These Terms will be governed by and shall be construed in accordance with the laws of the State of Arizona, without regard to Arizona’s choice or conflicts of law principles. This remaining part of this Section 12 is referred to as the “Arbitration Provision.”
Any dispute or claim, except those that are resolved informally or brought in a small claims court, arising out of or relating in any way to one or more of the following: (1) the Agreement; (2) the XIKELZA Service, XIKELZA Content or Listener Content (3) your Subscription; or (4) any products or services sold or distributed by XIKELZA or through XIKELZA (collectively “Claims”), will, where permitted by law, be resolved by binding arbitration, rather than in court. You and XIKELZA also agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights unrelated to your use of the XIKELZA Service or Subscription.
This Arbitration Provision is intended to be given the broadest possible meaning under the law and shall be governed by the Federal Arbitration Act and applicable U.S. federal arbitration law. Any arbitration of any Claim hereunder shall apply Arizona law and/or applicable federal law.
(a) General. You and XIKELZA agree that any and all Disputes, except those that are resolved informally or brought in a small claims court, will be arbitrated by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST XIKELZA.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). For the purposes of these Terms, “Disputes” are defined as any claim, controversy, or dispute between you and XIKELZA, whether arising before or during the effective period of these Terms, and including any claim, controversy, or dispute based on any conduct of you or XIKELZA that occurred before the effective date of these Terms, including any claims relating in any way to these Terms or the Services, or any other aspect of our relationship.
(b) Pre-Filing Requirement to Attempt to Resolve Disputes. Before an arbitration is commenced, you or XIKELZA agree to attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve a dispute informally. Both parties recognize that this is an important requirement, and that breach of this requirement would be a material breach of these Terms. To provide this opportunity, before commencing any arbitration or suit, each party agrees to send to the other party a written Notice (“Notice”). Any Notice to XIKELZA should be sent by mail to XIKELZA Legal Department, 2100 North Scottdale Road, Suite A113, Tempe, AZ 85288. Any Notice sent to you will be sent to the address on file for your account. The Notice must: (i) include your name; (ii) provide detailed information sufficient to evaluate the merits of the claiming party’s individualized claim and for the other party to determine if an amicable resolution is possible; and (iii) set forth the specific relief sought, including whatever amount of money is demanded and the means by which the demanding party calculated the claimed damages. Both parties agree that they will attempt to resolve a dispute through an informal negotiation within sixty (60) days from the date the Notice is sent. After that sixty (60) day period and not before, either party may commence arbitration. Each party agrees that federal or state courts located in the City and County of Tempe, Marcopia may enter injunctive relief to enforce the pre-filing requirements of this paragraph, including an injunction to stay an arbitration that has been commenced in violation of this paragraph.
(c) Scope of Arbitration. If we are not able to resolve the Dispute by informal negotiation or, as provided below, in a small claims court, all Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the “Arbitrator”) administered by the American Arbitration Association (https://www.adr.org) according to this Section and the Commercial Arbitration Rules for that forum, except you and XIKELZA will have the right to file early or summary dispositive motions and to request that the AAA’s Expedited Procedures apply regardless of the claim amount. Except as set forth above, the Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the General Terms and/or Additional Terms (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
(d) Small Claims Court. Subject to applicable jurisdictional requirements, either party may elect to pursue a dispute in a local small-claims court rather than through arbitration so long as the matter remains in small claims court and proceeds only on an individual basis. If a party has already submitted an arbitration demand to the AAA, the other party may, in its sole discretion, inform the AAA that it chooses to have the Dispute heard in small claims court. At that time, the AAA will close the arbitration and the Dispute will be heard in the appropriate small claims court, with no fees due from the arbitration respondent.
(e) Arbitration Procedures. The Federal Arbitration Act, 12 U.S.C. §§ 12-101, including its procedural provisions, fully applies. Any arbitration hearing will occur in Tempe, Arizona, at another mutually agreeable location or, if both parties agree, by telephone or videoconference. The Arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. XIKELZA values your privacy, particularly with respect to your financial transactions and data. Each of the parties shall maintain the confidential nature of the arbitration and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by applicable law. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. The Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect.
(f) Arbitration Fees. In accordance with the AAA Rules, the party initiating the arbitration (either you or us) is responsible for paying the applicable filing fee. For purposes of this arbitration provision, references to you and XIKELZA also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services. If for any reason Claims proceed in court rather than in arbitration, you and XIKELZA waive any right to a jury trial. In that instance, you expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the State of Arizona, County of Marcopia.
(g) Right to Opt Out. You may reject this Arbitration Provision, in which case only a court may be used to resolve any Dispute. To reject this provision, you must send us an opt-out notice (the “Opt Out”) within thirty (30) days after you create a XIKELZA account or we first provide you with the right to reject this provision.
(h) Court Proceedings. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions as discussed above) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of Tempe, Marcopia, or federal court for the District of Arizona.
16. Miscellaneous
XIKELZA may assign this Agreement, and may assign or delegate, in whole or in part, any of its rights or obligations under this Agreement. You may not assign this Agreement, in whole or in part, nor transfer or sub-license your rights under this Agreement, to any third party. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of any other provision of the Agreement, which shall remain in full force and effect. You may have certain rights that cannot be limited by contract under applicable law. These Terms in no way intend to restrict those rights. Any failure by XIKELZA or any third-party beneficiary to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision of this Agreement. No waiver shall be effective against XIKELZA unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Other than as stated in this Section or as explicitly agreed upon in writing between you and XIKELZA, this Agreement constitutes all the terms and conditions agreed upon between you and XIKELZA and supersedes any prior agreements in relation to the XIKELZA Service, whether written or oral.