Terms of Service
Effective date: Jan. 1, 2022
Welcome to Xender, which is provided by Xender (HK) Limited, an entity incorporated in Hong Kong ( "we"/ "us"/ "our")
1. Your Agreement to these Terms of Service
These Xender Terms of Service (these "Terms") serve as a binding agreement between a user ("you"/"your") of the Services (as defined below) and us (and our successors and assigns), and these Terms set forth the terms and conditions subject to which you may access and use Xender applications, websites, products, services and other content offered by us (collectively, the "Services").
You agree that, by accessing or using the Services, you have read, understood and agreed to be bound by these Terms. If you do not agree to these Terms, please do not access or otherwise use any of the Services.
Your access to and use of the Services is also subject to our Privacy Notice as well as any other additional guidelines or rules that are made available to you from time to time, the terms of which will be posted via our Services or otherwise notified to you and are incorporated herein by reference.
By accessing or using the Services, you represent that you have the full legal capacity, and you are competent to enter into a binding agreement with us.
If you are accessing or using the Services on behalf of a company, partnership, association, government or other organization ("Organization"), you represent and warrant that (i) you are duly authorized to do so; (ii) you are authorized to bind your Organization to these Terms; and (iii) your Organization is legally and financially responsible for your access to or use of the Services.
Please take the time to read these Terms carefully.
These Terms may be provided in more than one language. In the event of any conflict, where permitted under local law, this English language version of these Terms shall prevail.
2. Changes of these Terms
We may revise these Terms from time to time. We will use commercially reasonable efforts to notify you of any material changes to these Terms. However, you should look at these Terms regularly to check for such changes. We will also update the "Last Updated" date at the top of these Terms, which reflect the effective date of such Terms.
By continuing to access or use the Services after those changes become effective, you agree to be bound by the revised Terms. If you do not agree to the revised Terms, you must stop accessing or using the Services.
3. Who May Use the Services
You must be at least 13 years old (with additional limit on the minimum age for applicable jurisdictions set forth in our Privacy Notice ) ("Minimum Age") to use the Services.
If you are above the Minimum Age but below the age of majority under the law applicable to you, you must have your parent or legal guardian's consent to use the Services. Please have your parent or legal guardian read these Terms with you.
Without limiting the generality of the age limit set forth above, you must be at least 18 years old to use certain features of the Services. In such case, we may require you to provide necessary information or document to prove your age before accessing or using such features.
By granting your child permission to use the Services, you hereby agree to be bound by these Terms. You are responsible for monitoring and supervising your child's use of the Services. If your child is using the Services and is either under the Minimum Age or does not have your permission, please contact us at firstname.lastname@example.org immediately, so that we can disable your child's access.
4. Your Privacy
We respect and value your privacy. Please see our Privacy Notice regarding how we collect, use and process your personal information, and your rights and choices regarding your privacy.
Account and User ID
You may be required to register an account ("Account") with us to use or access certain features of the Services. You must provide true, accurate and complete information to us relating to your Account and maintain such information up-to-date.
You are also solely responsible for your user name of your Account, provided that your user name shall comply with applicable laws or our guidelines (if any) (e.g., your user name must not contain obscene words). We may request you to change your user name, suspend or terminate your Account with us, if your user name violates applicable laws or guidelines or otherwise deemed inappropriate by us.
You are also responsible for the confidentiality and security of your Account, including any passwords and credential information. If you are aware of or suspect that any unauthorized party knows your password or has accessed your Account, you must notify us immediately at email@example.com.
Termination of your Account also terminates your access to or use of the Services and any license or rights granted under these Terms. If you want to terminate or disable your Account, you may submit your Account deletion request on Xender or contact us at firstname.lastname@example.org. Once your Account is deleted, you will not be able to reactivate your Account or retrieve any information or content in connection with the deleted Account.
Third Party Account
You may access our Services by using your account with a third party (e.g., your Facebook account) ("Third-Party Account"). If you have any question or encounter any problem with your Third-Party Account, you should contact the relevant third party and resolve the issue directly with such third party. We are not responsible for your Third-Party Account, including without limitation loss or stealing of your password or misuse or retrieval of your Third-Party Account.
6. Your Use of the Service
Not all Services or features may be available in your jurisdiction. Different features may be available in different versions of the Services. Certain features are not available for users under a certain age.
In order to use our Services, you are responsible for your own device and any charges incurred in connection therewith (e.g., Internet connection and data charges). If you are unsure what those charges may be, please consult with your service provider.
We may from time to time update or modify our Services. You may be asked to update the Services manually. You understand that our Services may not operate properly or not be fully available to you, if you opt out of automatic updates or if you reject to make such updates.
We reserve the right to discontinue or terminate our Services, in full or in part, permanently or otherwise, with or without notice to you.
The Services are owned and operated by us, and we reserve all rights in the Services not expressly granted to you in these Terms.
7. Xender Content
As between you and us, all audios, videos, images, text, graphics, software, music, trademarks, marks, designs, and other content, information and materials on our Services and the selection and arrangement thereof and all intellectual property rights in connection therewith ("Xender Content") are either owned by or licensed to us.
We hereby grant you a limited, personal, non-exclusive, non-transferable, non-sublicensable and revocable license to access and use Xender Content solely for your personal and non-commercial use in accordance with the terms and conditions of these Terms. Unless expressly permitted by us, you shall not download, copy, reproduce, distribute, transmit, display, broadcast, license, sell, offer for sell or otherwise exploit Xender Content for any other purposes. We reserve all rights in Xender Content unless expressly licensed to you hereunder.
You shall not use Xender Content, Third Party Content/Services (as defined below) or other materials made available as part of the Services for any purpose not expressly permitted by these Terms. Any such use will be deemed a breach of these Terms.
8. User Files
The Services allow you to transmit and share (collectively, "Transmit" or "Transmission") your photos, documents, audios, videos, files, apps, materials, content, data and other information ("User Files") with other users of the Services or with your PC.
By Transmitting the User Files, you grant us a sublicensable, transferable, royalty-free license necessary to Transmit your User Files to and solely to user(s) that you select for Transmitting such User Files, and to modify and adapt such User Files solely for enabling the Transmission of your User Files and for providing the Services to you. You represent that you are the owner or have obtained necessary rights, permissions or authorization to Transmit the User Files. Subject to the limited license above, we do not claim ownership to the User Files. We do not verify, censor or monitor the content of the User Files.
Although we may use commercially reasonable efforts to protect the confidentiality and security of the User Files that are Transmitted via our Services, you understand that no transmission of data over the Internet or any network can be guaranteed to be completely secure, and thus you agree and acknowledge that we cannot guarantee the confidentiality or security of such User Files or any information. Any Transmission of User Files is at your own risk.
9. User Content
The Services may include comments or other interactive features by which you can upload, publish, submit, send or otherwise make available images, photos, comments and other information or content ("User Content") on the Services. User Content expressly excludes User Files. For the avoidance of doubt, if any User Content is Transmitted as a User File, the terms and conditions under Section 8 (User Files) would apply to the aforesaid Transmission.
You acknowledge that User Content will be made publicly available and is not confidential. You shall not post, publish or otherwise make available confidential information via the Services.
Between you and us, you own your User Content. By uploading, publishing, submitting, sending or otherwise making available your User Content via the Services, you hereby grant us and our affiliates an irrevocable, unconditional, non-exclusive, royalty-free and fully paid-up, sublicensable, transferable, universal and perpetual license to (a) copy, reproduce, publish, transmit, distribute, display, use, adapt, make derivative work of, and otherwise exploit your User Content in any media and by all means, either now existing or hereafter devised; (b) use the identity, name and likeness and other biographical information you uploaded, published, submitted, sent or otherwise made available in connection with such User Content; (c) use the foregoing for promotional purposes deemed appropriate by us; and (d) for necessary archiving purposes.
You must at all times ensure that: (a) you are the owner or have obtained necessary rights, permissions or authorization of your User Content; (b) you have all necessary rights, permissions or authorization to grant us the rights as set out under these Terms; and (c) your User Content (and use of your User Content in accordance with these Terms) does not infringe on or violate any rights, title or interest, including intellectual property rights, of any person or otherwise contravene any applicable laws. You agree to pay for all royalties, fees, and any other monies owing any person by reason of exploitation of the User Content you make available on or through the Services in accordance with these Terms.
We reserve the right to refuse to publish, cut, edit, crop, block, disallow, take down, delete or remove any User Content for any reason at our sole discretion (e.g., if such User Content is deemed inappropriate according to applicable laws or guidelines, or in response to third party complaints) with or without notice and without liability to you.
You are solely responsible for your User Content, and we recommend that you keep a back-up copy of it at all times. We do not guarantee the accuracy, integrity, appropriateness or quality of any User Content, and under no circumstances will we be liable in any way for any User Content.
We make no guarantee that your User Content will not be copied, reproduced, distributed or otherwise used without your authorization. You agree that, to the fullest extent permitted by applicable laws, we shall not be liable to you for any such unauthorized use of your User Content, and you hereby waive and agree not to assert any claim against us arising out of or in connection therewith. You understand that even if you seek to delete User Content from the Services, it may as a technical and administrative matter take some time or not be possible to achieve – for example, we may not be able to prevent any third party from storing or using any of your User Content that you have made public via the Services.
You acknowledge that we have the right to disclose your identity to a third party who claims that any User Content posted or uploaded by you on our Services infringes on such third party's intellectual property rights, privacy or other proprietary rights or if we are required to disclose your identity under applicable laws.
10. Third Party Services
By accessing or using the Services, you may access or use content, materials, products or services ("Third Party Content/Services") provided by third parties.
In case that you access or use any Third Party Content/Services through the Services, you acknowledge and agree that (a) you are solely responsible for your access to or use of such Third Party Content/Services; (b) you shall be solely responsible for your reliance and other activities arising from or in connection with your access to or reliance on such Third Party Content/Services; (c) we have no control over the Third Party Content/Services, and we do not warrant, approve or endorse any Third Party Content/Services in any manner; (d) we are not responsible for the accuracy of Third Party Content/Services; (e) we do not guarantee the quality, reliability or suitability of any Third Party Content/Services; and (f) we have no liability to you for any damages or losses suffered as a result of or in connection with your access to or use of Third Party Content/Services.
Your access or use of Third Party Content/Services is subject to the agreements or understandings between you and the third party directly, and certain third parties may require you to agree to additional terms and conditions for accessing or using such Third Party Content/Services. Such agreements, understandings, additional terms and conditions are solely between you and the applicable third party. We are not a party to your relationship with such third party, neither do we act as the agent of you or the third party.
You acknowledge that we may, at our sole discretion, disable, suspend or remove the Third Party Content/Services from the Services in full or in part at any time without any liability to you.
You acknowledge that the games (web games or App games) available on our Services and any and all content and elements embodied therein are Third Party Content/Services provided by the respective third party game distributors or developers or other third party providers, not by us.
We may display or otherwise make available advertising, promotional or commercial content or activities ("Advertising Content") on our Services. You understand that Advertising Content is Third Party Content/Services and is provided for your information only. You agree that such Advertising Content may be displayed or made available on the Services in conjunction with your User Content.
11. Code of Conduct for Using the Services
Your access to and use of the Services is subject to these Terms, all applicable laws and regulations and guidelines.
You agree and acknowledge that you will not:
- access or use the Services if you are under the Minimum Age set forth in Section 3 (Who May Use the Services) above, or if you are otherwise not fully competent to enter into a binding agreement;
- use the Services for any illegal or noncompliant purposes or violate applicable laws, regulations, rules, or guidelines;
- modify, alter, reverse engineer, duplicate, disassemble, decompile, transfer, copy, exchange or translate the Services or any elements therein or thereof without our prior written permission;
- use the Services to make profits or for any commercial or unauthorized purposes, such as sending advertising content or messages without our prior written permission;
- use any automated system, software, robot, spider, crawler, scraper or interface, or any other automatic device, software or process, whether operated by a third party or otherwise, to extract, monitor, copy or collect any data or information from the Services, or engage in any manual process to do the same;
- attempt to circumvent any technical measures we employ, or attempt to access parts or features of the Services that you are not authorized to access;
- make available the Services or any elements thereof as a part of any other product or service;
- probe, scan, or test the vulnerability of our Services or any system or network;
- intimidate or harass other users, promote sexually explicit material, violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- use or develop any third-party applications that interact with the Services or other users' content or information without our prior written consent;
- use the Services in a way that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services, or take any acts that could affect, cause damage to or impair the provision of the Services;
- use or attempt to use another user's account, username, or password without their permission;
- solicit login credentials from another user;
use the Services to host, display, upload, modify, publish, transmit, distribute, broadcast, store or otherwise make available any content, materials or information that:
- belong to another person and to which you do not have any right;
- may violate applicable laws or infringe upon a third party's rights, including without limitation copyright, trade mark or other intellectual property, privacy or proprietary rights;
- may encourage or provide direction for a violation of law, dangerous activities or self-harm;
- are harmful, harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatsoever;
- harm minors in any way;
- deceive or mislead the addressee about the origin of such messages or communicate any information which is grossly offensive or menacing in nature;
- impersonate another person;
- would be considered, perceived or interpreted as obscene, indecent, pornographic, sexually explicit, libelous, maliciously false, inaccurate, misleading, offensive, deceptive, bullying, threatening, or abusive;
- would be considered, perceived or interpreted as threats, attacks, incitement to violence, hate speech, hateful behavior, discrimination, slurs, encouragement or facilitation of illegal and criminal activities, promotion or trade of regulated goods, frauds, scams, gambling, dangerous acts, harassment, sexual exploitation, impersonation, misinformation or fake engagement;
- contain viruses, Trojan horses, malicious code, worms, logic bombs software or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; or
- at our sole discretion, is objectionable or may restrict or inhibit others from using the Services, or which may create a risk of loss, harm or damage to any person or property.
We may with or without notice to you (a) disable, suspend or terminate your Account or block or ban your access to the Services; and/or (b) remove or disable any of your User Content, at any time without any liability to you. Some of the reasons may include where we consider that you fail to comply with any of the provisions of these Terms or applicable laws and regulations, or activities occur under your Account which, at our sole discretion, would or might cause damage to or impair the Services or infringe on or violate any third-party rights.
12. Protection of Intellectual Property Rights
We respect intellectual property rights and comply with applicable laws on protection of intellectual property. We sincerely ask you to do the same. You agree not to infringe upon intellectual property rights of any person while using the Services; otherwise we have the right to suspend or terminate your Account with us or your access to our Services.
If you find anything on the Services infringing upon intellectual property rights which you own or control, you may notify us of such infringement at email@example.com.
13. Subscriptions for Premium Services
Premium Service and Subscription Fees
We offer most of the features of the Services to you for free. But you may also subscribe certain features of the Services ("Premium Services") and pay subscription fees ("Subscription Fees") before you can use them.
The Premium Services are only available to users of Apple iOS version of the Services and who has a valid Apple ID account.
The price for Subscription Fees is solely determined by us and will be displayed on the Services at the point of purchase. We reserve the right to change the price for the Premium Services from time to time and/or the features and functions available with the Premium Services in any manner and at any time as we may determine in our sole and absolute discretion, and we will use commercially reasonable effort to communicate any such changes to you in advance. Price changes will be effective at the time of renewal of your subscription. As such, please make sure you read any notification of price changes carefully.
The currency applicable to your payment may depend on various factors (e.g., the jurisdiction where you make the purchase and the app store through which you make the purchase).
You can pay for Subscription Fees via your valid Apple ID account. All payment will be processed in accordance with the applicable terms and conditions of Apple App Store. You agree that when you pay the Subscription Fees, (a) you authorize Apple to save your information of your chosen payment methods and continue billing your chosen payment method (e.g., credit card) to avoid interruption of the Premium Services, and (b) the taxes payable by you may be calculated based on the billing information that you provide at the time of purchase.
If there is any failure of payment via your chosen payment method (for example, such payment is rejected, denied, not received by us), we may not be able to provide you or terminate to provide you with the Premium Services until payment is properly processed, and you are liable for any fees, costs, expenses or other amounts arising from such failure of payment. Your failure of the payment may result in a change to the start of your next Premium Service subscription period and may change the date on which you are billed for each period.
Subscription Renewals and Cancellations
You agree that your subscription of the Premium Services will automatically renew for additional periods equal in duration to your preceding subscription term, and you authorize Apple to charge the Subscription Fees and applicable taxes automatically through your chosen payment method at the start of each new subscription period. If you do not want to use the Premium Services after the then-current subscription term or if you do not want to be charged automatically on a recurring basis, you must cancel or adjust your subscription at least 24 hours before the subscription period renewal date. You can cancel or adjust your subscription of the Premium Services via Settings - iTunes Account & App Store- Apple ID - View Apple ID - Subscriptions. You will still have access to the Premium Services after your cancellation until the end of the then-current subscription term, after which you will not be able to use the Premium Services you have unsubscribed.
You may be able to sign up for a free trial ("Free Trial") of the Premium Services for a limited period and may be required to provide your payment information to start the Free Trial. By providing your payment details to sign up for the Free Trial, you agree to such charge and authorize Apple to charge the applicable Subscription Fees upon the termination of the Free Trial period.
You may cancel your Free Trial at any time but at least 24 hours before the end of the Free Trial period. If you do not timely cancel your Free Trial at least 24 hours before the end of the Free Trial period, to the extent permitted under applicable laws, you will be automatically charged the Subscription Fees applicable to the Premium Services following the end of the Free Trial period, and unless you have otherwise chosen a subscription period, your subscription of the Premium Services will be renewed according to the renewal period applicable for the subscription model selected by you when you sign up for the Free Trial.
To the extent permitted under applicable laws, we reserve the right to modify or terminate your Free Trial for any reason or no reason, with or without prior notice to you.
You must follow the applicable refund policy of Apple App Store.
If you are subject to any taxes imposed by any jurisdiction on the payment for your use of the Services, you will be responsible for the payment of such taxes (including any related penalties or interest). We reserve the right to charge any applicable taxes if we determine that we are required to do so by applicable laws. We also reserve the right to request certifications from you in relation to taxes and to report to tax authorities amounts paid and/or withheld from payments to you.
15. Your Feedback
By sending, submitting or otherwise making available any feedback, ideas, suggestions, documents, proposals or other materials ("Feedback") to us or our personnel, you irrevocably grant us a sublicensable, transferable, perpetual, universal and unlimited license to use, exploit or disclose such Feedback for any purpose in any manner without restriction and without any compensation or credit to you or any third parties, whether in whole or in part, and whether as provided or as modified. You also agree that we have no obligation to review, consider, use or implement your Feedback, and nor will we be required to treat your Feedback as confidential.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS US, OUR SUBSIDIARIES, AFFILIATES, LICENSORS, LICENSEES, ASSIGNS AND SUCCESSORS AND EACH OF OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUPPLIERS, AGENTS, PARTNERS, ADVISORS ("XENDER PARTIES") FROM AND AGAINST ANY CLAIM, PROCEEDING, LOSS, DAMAGE, LIABILITY, COST, DEMAND OR EXPENSE (INCLUDING WITHOUT LIMITATION ATTORNEY'S FEES) OF ANY KIND ARISING OUT OF OR RELATED TO: (A) ANY OF YOUR ACT OR OMISSION; (B) YOUR BREACH OF THESE TERMS; (C) YOUR VIOLATION OF THE RIGHTS OF ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION INFRINGEMENT ON ANY INTELLECTUAL PROPERTY, PROPRIETARY RIGHT OR TRADE SECRET, OR PRIVACY OF ANY PERSON OR ENTITY; OR (D) YOUR VIOLATION OF LAW OR CONTRACTUAL OBLIGATION AND ANY CLAIMS, DEMANDS, NOTICES IN CONNECTION THEREWITH.
NOTHING IN THESE TERMS SHALL AFFECT ANY STATUTORY RIGHTS THAT YOU CANNOT CONTRACTUALLY AGREE TO ALTER OR WAIVE AND ARE LEGALLY ENTITLED TO AS A CONSUMER.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, XENDER PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE OR SUITABILITY FOR THE INTENDED USE, TITLE AND NON-INFRINGEMENT, OF THE SERVICES (INCLUDING ALL INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN). IN PARTICULAR, WE DO NOT REPRESENT OR WARRANT TO YOU THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE SERVICES WILL OPERATE WITHOUT INTERRUPTION OR WILL BE SECURE, COMPLETE, RELIABLE, AVAILABLE OR ERROR-FREE; OR (III) ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED.
WHILE WE ATTEMPT TO MAKE YOUR ACCESS TO AND USE OF THE SERVICES SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR WILL TRANSMIT DATA IN A SECURE MANNER. ANY DOCUMENTS OR MATERIALS TRANSMITTED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES ARE ACCESSED OR USED AT YOUR SOLE DISCRETION AND YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSSES OF DATA OR CONTENT RESULTING THEREFROM.
WE MAY CHANGE, SUSPEND, WITHDRAW, RESTRICT OR TERMINATE THE AVAILABILITY OF ALL OR ANY PART OF OUR SERVICES FOR BUSINESS OR OPERATIONAL REASONS AT ANY TIME WITH OR WITHOUT NOTICE.
18. Limitation of liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT ANY LIABILITY TO THE EXTENT THAT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAWS.
XENDER PARTIES WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOSS OF BUSINESS, REVENUES, PROFITS, OPPORTUNITIES, GOODWILL OR BUSINESS REPUTATION, OR ANY LOSS OF DATA OR CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THE FOREGOING DAMAGES.
XENDER PARTIES WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING IN CONNECTION WITH (A) YOUR ACCESS TO OR USE OF THE SERVICES IN BREACH OF THESE TERMS; (B) ANY UNAUTHORIZED USE, CHANGES, MODIFICATION, ALTERATION OR DESTRUCTION OF THE SERVICES; (C) THE FAILURE, SUSPENSION, DISCONTINUATION OR TERMINATION OF ALL OR PART OF THE SERVICES AT ANY TIME; (D) ANY THIRD PARTY CONTENT, SOFTWARE OR FUNCTIONS (INCLUDING Third Party Content/Services) USED IN CONNECTION WITH THE SERVICES; AND (E) ANY RELIANCE OF YOU ON THE TRUTHFULNESS, RELIABILITY, COMPLETENESS OR ACCURACY OF ANY ADVERTISING CONTENT, OR ARISING FROM ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING CONTENT APPEARS ON THE SERVICES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF XENDER PARTIES FOR ALL CLAIMS IN CONNECTION WITH THESE TERMS ARISING OUT OF ANY AND ALL CIRCUMSTANCES, EXCEED THE GREATER OF: (A) THE AGGREGATE FEE PAID OR PAYABLE BY YOU TO US, IF ANY, IN THE PAST TWELF MONTHS FOR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; AND (B) ONE HUNDRED U.S. DOLLARS (U.S. $100.00).
19. Governing Law
These Terms shall in all respects be governed by and construed in accordance with the laws of Hong Kong, without regard to conflict of law rules or principles.
20. Dispute Resolution
Your Dispute with Us
You agree to contact us first for any claim, dispute or controversy ("Dispute") arising from or in connection with these Terms, including any question regarding existence, validity or termination of these Terms. Both parties agree to attempt to resolve such Dispute in good faith.
For any unresolved Dispute, the parties agree that such Dispute shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the Hong Kong International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Hong Kong. The tribunal shall consist of three (3) arbitrators. The language of the arbitration shall be English.
Your Dispute with Third Parties
To the fullest extent permitted by law, any dispute between you and third parties (e.g., service provider, copyright owner) relating to your use of the Services, shall be resolved between you and such third party directly. Xender Parties will not be held liable to any extent for any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way related to your dispute with third parties. You hereby irrevocably release Xender Parties from, defend and hold Xender Parties harmless against any and all claims and liabilities arising out of or in connection with your disputes with third parties of any nature.
21. Other Terms
Force Majeure. We will not be responsible for any failure to perform our obligation hereunder caused by reasons beyond our reasonable control.
Entire Agreement. These Terms, together with any other terms or policies incorporated herein by reference, constitute the entire agreement between you and us governing your use of the Services, and replace all prior agreements and communications between you and us in relation to your use of Services.
Severability. If any provision of these Terms is found to be invalid or unenforceable, then, without affecting the validity or enforceability of the remaining of these Terms, such provision shall be deemed to be severed from these Terms, and if possible, replaced with similar provision to the extent valid and enforceable under applicable laws and regulations so as to effect the original intent of the parties as closely as possible so that the agreements and transactions contemplated hereunder are consummated as originally contemplated to the fullest extent possible. The remaining provisions of these Terms will continue to be valid in full force and effect.
No Waiver. Our failure or delay to enforce any provision of these Terms shall not be deemed as waiver of any rights hereunder and will not prevent further exercise of our rights later.
Assignment. We may freely assign, transfer or sub-contract these Terms or any of our rights or obligations hereunder, in whole or in part, to any third party without notice to you. You shall not assign these Terms without our prior written consent.
Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination, including without limitation Sections 7, 9, 18-23.
Independent Contractor. These Terms do not and shall not be constructed to create any joint venture, partnership, employment, agency or franchise relationship between you and us.
No Third Party Rights. No third party other than you and us shall have rights to rely on or enforce these Terms, unless otherwise provided under these Terms.
Headings. Headings are included for reference purpose only and will not affect the meaning or interpretation of any provisions in these Terms.
22. Contact Us
If you have any questions or want to learn more about the Services, please contact us at firstname.lastname@example.org.
23. Apple App Store Specific Terms
Your use of the Services made available as an application via the Apple App Store ("iOS Apps") is subject to any policies promulgated by Apple Inc. or its affiliates or subsidiaries (collectively, "Apple") that apply to the use of such Services, including the Apple Media Services Terms and Conditions available at https://www.apple.com/legal/internet-services/itunes/.
If there is any inconsistency between the provision of this Section 25 and the remaining provisions of these Terms, the provision of this Section 25 shall prevail.
You acknowledge that:
- to the extent any third party content is made available or accessible via the iOS Apps, the third party providing such content shall be solely responsible for such content;
- we may from time to time adjust your visibility, status or rank on iOS Apps in accordance with these Terms;
- we, not Apple, license or make available the iOS Apps to you in accordance with these Terms and these Terms are between we and you, not Apple;
- the license granted to you in the iOS Apps is limited to a non-transferable license to use the iOS Apps on any Apple-branded products that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such iOS Apps may be accessed and used by other accounts associated with the purchaser via iOS Family Sharing or volume purchasing;
- you and we acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS Apps;
- you shall be solely responsible for ensuring your use of any account that you use to log into the Services is in accordance with the policies applicable to such account;
- Apple Inc. and its affiliates are not responsible or liable to you for content made available through the Services, and as between you and Apple, you, not Apple, are solely responsible for your use of the Services and the content thereof;
- in the event of any failure of the iOS Apps to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iOS App(s) to you; and, to the maximum extent permitted by applicable laws, Apple will have no other warranty obligation whatsoever with respect to the iOS Apps, and as between Apple and us, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility;
- As between Apple and us, (a) we, not Apple, are responsible for addressing any of your claims or claims of any third party relating to the iOS App or your possession and/or use of that iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, (b) in the event of any third party claim that the iOS App or your possession and use of that iOS App infringes that third party's intellectual property rights, we, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim;
- we do not grant you a right to use any intellectual property rights, including trademarks, of Apple Inc. or its affiliates. Your use of such intellectual property rights is granted (if applicable) in accordance with the Apple Media Services Terms and Conditions and any other policies made available by Apple Inc. or its affiliates from time to time in relation to use of the platform;
- we may be required to change the Services, or these Terms, in order to comply with instructions of Apple. You agree that we are permitted to make such changes immediately and without notice and shall have no liability to you or others with respect to such changes; and
- Apple, and Apple's subsidiaries, are third party beneficiaries of these Terms, and that, 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 thereof.
24. Indonesia-Specific Terms
If you are using our Services in Indonesia, the following additional terms apply. In the event of any conflict between the following additional terms and the provisions of the main body of these Terms, the following terms shall prevail.
- Minimum Age. The Services are only intended for people of more than 14 years old (including) in Indonesia.
- Agreement to these Terms. By using the Services, you represent that you are at least 21 years of age or married or not under guardianship. If you are below 21 years old and you are not married, or under guardianship, you represent and warrant that you have obtained consent from your parent or legal guardian to use the Services. If you do not obtain consent from your parent or legal guardian, or your parent or guardian is not willing to give their consent, you must cease using the Services.