XOOBA Terms and Conditions US

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Terms and Conditions

1. Contractual Relationship
These Terms of Use ("Terms") govern the access or use by you, an individual, from within the United States and its territories and possessions of applications, websites, content, products, and services (the "Services") made available in the United States and its territories and possessions by Xooba and its subsidiaries and affiliates (collectively, "Smoked Ribs"). PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES. In these Terms, the words "including" and "include" mean "including, but not limited to." Your access and use of the Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and Xooba. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. Xooba may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason. Supplemental terms may apply to certain Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in region-specific disclosures (e.g., a particular city webpage on www.xoobies.com) or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services. Xooba may amend the Terms related to the Services at any time. Amendments will be effective upon Xooba's posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended. Our collection and use of personal information in connection with the Services is as provided in Xooba's Privacy Policy located at www.xoobies.com.

2. The Services
The Services constitute a technology platform that enables users of Xooba's mobile applications or websites provided as part of the Services (each, an "Application") to arrange and schedule tours and/or experiences with third party providers of such services, including independent experience providers with Xooba or certain of Xooba's affiliates ("Third Party Providers"). Unless otherwise agreed by Xooba in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use. BY AGREEING TO THE TERMS, YOU AGREE TO THE FOLLOWING STATEMENTS: YOU ACKNOWLEDGE THAT XOOBA DOES NOT PROVIDE TOURS OR EXPERIENCES OR FUNCTION AS A TRAVEL COMPANY. YOU UNDERSTAND AND AGREE THAT XOOBA IS NOT PARTY TO ANY AGREEMENTS ENTERERED INTO BETWEEN TOUR PROVIDERS AND TOURISTS, NOR IS XOOBA A TRAVEL AGENT OR INSURER. XOOBA HAS NO CONTROL OVER THE CONDUCT OF TOUR PROVIDERS AND OTHER USERS OF THE SITE, APPLICATION AND SERVICES, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IF YOU CHOOSE TO CREATE AN EXPERIENCE LISTING ON XOOBA, YOU UNDERSTAND AND AGREE THAT YOUR RELATIONSHIP WITH XOOBA IS LIMITED TO BEING AN INDEPENDENT, THIRD PARTY CONTRACTOR, AND NOT AN EMPLOYEE, AGENT, JOINT VENTURER OR PARTNER OF XOOBA FOR ANY REASON, AND YOU ACT EXCLISIVELY ON YOUR OWN BEHALF AND FOR YOUR OWN BENEFIT, AND NOT ON BEHALF OF OR FOR THE BENEFIT OF XOOBA. XOOBA DOES NOT CONTROL, OR HAVE THE RIGHT TO CONTROL, YOUR EXPERIENCE LISTING, YOUR OFFLINE ACTIVITIES ASSOCIATED WITH YOUR LISTING, OR ANY OTHER MATTERS RELATED TO ANY LISTING, THAT YOU PROVIDE. AS AN INDEPENDENT CONTRACTOR YOU AGREE NOT TO DO ANYTHING TO CREATE A FALSE IMPRESSION THAT YOU ARE ENDORSED BY, PARTNERING WITH, OR ACTING ON BEHALF OF OR FOR THE BENEFIT OF XOOBA, INCLUDING BY INAPPROPRIATELY USING ANY XOOBA INTELLECTUAL PROPERTY.

Listings
As an independent experience provider, you may create an Experience Listing. To create a Listing, you will be asked a variety of questions about the Experience to be listed, including, but not limited to, the start location, number of people, duration, details of the experience, and end location. Listings will be made publicly available via the Site, Application, and Services. You understand and agree that the placement or ranking of Listings in search results or during browsing may depend on a variety of factors, including, but not limited to, Guests and Experience Providers preferences, ratings and/or ease of booking. You understand and agree that once a Consumer requests a booking of your experience, you may not request the Consumer to pay a higher price than in the booking request. You acknowledge and agree that you alone are responsible for any and all Listings and provider content you post. Accordingly, you represent and warrant that any Listing you post and the booking of any Experiences in a Listing you post (i) will not breach any agreements you have entered into with any third parties, such as other attractions, museums, restaurants, parks, or any third party venue where tickets are required to gain entry, and (ii) will (a) be in compliance with all applicable laws, Tax requirements, Intellectual Property laws, and rules and regulations that may apply to any Experience included in a Listing you post (including having all required permits, licenses and registrations), and (b) not conflict with the rights of third parties. Please note that Xooba assumes no responsibility for an Experience Provider’s compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. Xooba reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that Xooba, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or Xooba’s then-current Policies and Provider guidelines or standards, trademark & branding guidelines, or otherwise harmful to the Site, Application, or Services.

If you are an Independent Experience Provider, you understand and agree that Xooba does not act as an insurer or as your contracting agent. If a Consumer requests a booking for your Experience, any agreement you enter into with such Consumer is between you and the Consumer and Xooba is not a party to it.

Xooba recommends that Experience Providers obtain appropriate insurance for each of their Experience offerings. Please review any insurance policy that you may have for your Experience Offering carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, any such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Consumers (and the individuals the Consumer invites to participate) during your Experience. Xooba may offer Experience providers the option to have photographers and videographers to take photographs and videos of their Experience. If you as an Experience Provider choose to utilize photographer/videographer, Xooba shall own all copyrights in all photographs and videos taken but these photographs and videos will be made available to you to include in your Listing. All images, materials and content created by these photographers and videographers constitute Xooba Content, regardless of whether you include them in your Listing and you agree not to use them except in your Listing without prior authorization from Xooba. If your Xooba Account is terminated or suspended for any reason, you shall not use this content in any way. You agree that Xooba retains its right to and may use the photographs and/or videos for advertising, marketing, commercial and other business purposes in any media or platform, whether in relation to your Listing or otherwise, without further notice or compensation.

License.
Subject to your compliance with these Terms, Xooba grants you a limited, non-exclusive, non-sub-licensable, revocable, non-transferrable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Xooba and Xooba's licensors.

Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Xooba; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.

Provision of the Services.
You acknowledge that the Services may be made available in connection with: (i) certain of Xooba's subsidiaries and affiliates; or (ii) independent Third Party Providers, including Tour Operators.

Third Party Services and Content.
The Services may be made available or accessed in connection with third party services and content (including advertising) that Xooba does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third party services and content. Xooba does not endorse such third party services and content and in no event shall Xooba be responsible or liable for any products or services of such third party providers. Additionally, Apple Inc., Google, Inc., Microsoft Corporation Limited will be a third-party beneficiary to this contract if you access the Services using Applications developed for Apple iOS, Android, or Microsoft Windows mobile devices, respectively. These third party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third party beneficiary's terms of service.

Ownership.
The Services and all rights therein are and shall remain Xooba's property or the property of Xooba's licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Xooba's company names, logos, product and service names, trademarks or services marks or those of Xooba's licensors.

3. Your Use of the Services
User Accounts.
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to Xooba certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method (either a credit card or accepted payment partner). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Services or Xooba's termination of this Agreement with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Xooba in writing, you may only possess one Account. User Requirements and Conduct. The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to book a tour from Third Party Providers unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials). You will not in your use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.

Text Messaging.
By creating an Account, you agree that the Services may send you informational text (SMS) messages as part of the normal business operation of your use of the Services. You may opt-out of receiving text (SMS) messages from Xooba at any time by sending an email to customerservice@xoobies.com or sending a text message to 224-323-6580. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Services.

Promotional Codes.
Xooba may, in Xooba's sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services and/or a Third Party Provider's services, subject to any additional terms that Xooba establishes on a per promotional code basis ("Promo Codes"). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by Xooba; (iii) may be disabled by Xooba at any time for any reason without liability to Xooba; (iv) may only be used pursuant to the specific terms that Xooba establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Xooba reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that Xooba determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.

User Provided Content.
Xooba may, in Xooba's sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Xooba through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to Xooba, you grant Xooba a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Xooba's business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.

You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Xooba the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor Xooba's use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Xooba in its sole discretion, whether or not such material may be protected by law. Xooba may, but shall not be obligated to, review, monitor, or remove User Content, at Xooba's sole discretion and at any time and for any reason, without notice to you.

Network Access and Devices.
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. Xooba does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

4. Payment
You understand that use of the Services may result in charges to you for the services or goods you receive from a Third Party Provider ("Charges"). After you have received services or goods obtained through your use of the Service, Xooba will facilitate your payment of the applicable Charges on behalf of the Independent Experience Provider, as such Third Party Provider's limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Third Party Provider. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by Xooba.

All Charges are due immediately and payment will be facilitated by Xooba using the preferred payment method designated in your Account, after which Xooba will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Xooba may, as the Third Party Provider's limited payment collection agent, use a secondary payment method in your Account, if available.

As between you and Xooba, Xooba reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in Xooba's sole discretion. Xooba may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for services or goods from a Third Party Provider at any time prior to such Third Party Provider's arrival, in which case you may be charged a cancellation fee.

This payment structure is intended to fully compensate the Independent Experience Provider for the services or goods provided. Xooba does not designate any portion of your payment as a tip or gratuity to the Independent Experience Provider. Any representation by Xooba (on Xooba's website, in the Application, or in Xooba's marketing materials) to the effect that tipping is "voluntary," "not required," and/or "included" in the payments you make for services or goods provided is not intended to suggest that Xooba provides any additional amounts, beyond those described above, to the Independent Experience Provider. You understand and agree that, while you are free to provide additional payment as a gratuity to any Independent Experience Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback about your Third Party Provider.

5. Cancellations and Refunds
If an Experience Provider cancels a confirmed booking made via the Site, Services, and Application, (i) Xooba will contact the Consumer in an attempt to provide alternative options, (ii) if an alternative option is agreed to by consumer and is more expensive than the previous booking, Xooba will absorb the difference up to 20% more than previous booked experience, (iii) if the new experience is less than the cost of the previous purchased experience, Xooba will issue a refund for the difference in value to the Consumer, (iv) if Xooba is unable to accommodate customer with an alternative experience, Xooba will issue a full-refund and issue a 20% promo code to be used for future bookings. To cancel a confirmed booking, Consumer must contact Xooba directly (i) any cancellation made three days in advance of the scheduled experience will qualify for a full refund, (ii) no refund for any cancellations made less than 72 hours of experience.

In certain circumstances, Xooba may decide, in its sole discretion, that it is necessary to cancel a confirmed booking made via the Site, Application and Services. This may be due to force majeure or for any other reason, (i) Xooba will contact the Consumer to reschedule experience for the same prices, (ii) if unable to reschedule Xooba will issue a full refund.

6. Disclaimers; Limitation of Liability; Indemnity.
DISCLAIMER.
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." XOOBA DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, XOOBA MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. XOOBA DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

LIMITATION OF LIABILITY.
XOOBA SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, EVEN IF XOOBA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. XOOBA SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY INDEPENDENT EXPERIENCE PROVIDER, EVEN IF XOOBA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. XOOBA SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND XOOBA'S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY EXPERIENCE PROVIDERS PROVIDING TOURS REQUESTED THROUGH SOME REQUEST BRANDS MAY OFFER PEER-TO-PEER TOUR SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED. IN NO EVENT SHALL XOOBA'S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED FIVE HUNDRED U.S. DOLLARS (US $500).

XOOBA'S SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TOURS, GOODS, OR TICKETS TO EVENTS WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT XOOBA HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TOURS, TRANSPORTATION, GOODS OR EVENT TICKETS PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS. YOU ACKNOWLEDGE THAT ALL TRAVEL INVOLVES AN ELEMENT OF RISK AND THAT SOME TOURS OFFERED ON THE SITE MAY BE ADVENTUROUS IN NATURE AND MAY INVOLVE A SIGNIFICANT AMOUNT OF PERSONAL RISK. YOU HEREBY ASSUME ALL SUCH RISK AND YOU, YOUR ESTATE, YOUR FAMILY, HEIRS AND ASSIGNS HEREBY RELEASE XOOBA AND THE INDEPENDENC EXPERIENCE PROVIDER FROM ALL CLAIMS AND CAUSES OF ACTION WHATSOEVER ARISING FROM ANY INJURY, DEATH, OR OTHER DAMAGES, BOTH PECUNIARY AND NON-PECUNIARY, TO YOU THAT MAY OCCUR AS A RESULT OF YOUR PARTICIPATION IN THE TOURS OFFERED IN THE SITE OR AS A RESULT OF THE NEGLIGENCE OF ANY PARTY, INCLUDING THE INDEPENDENT EXPERIENCE PROVIDER OR ANY EMPLOYEE, OFFICER, AGENT, CONTRACTOR OR ASSIGN OF XOOBA, WHETHER SUCH NEGLIGENCE IS PASSIVE OR ACTIVE.

THE LIMITATIONS AND DISCLAIMER IN THIS SECTION 5 DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

Indemnity.
You agree to indemnify and hold Xooba and its officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Xooba's use of your User Content; or (iv) your violation of the rights of any INDEPENDENT EXPERIENCE PROVIDER, including Third Party Providers.

8. Dispute Resolution
Arbitration.
You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, "Disputes") will be settled by binding arbitration between you and Xooba, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Xooba are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Xooba otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If any provision in this “Dispute Section” is held invalid and unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.

If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law.

Arbitration Rules and Governing Law.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

Arbitration Process.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. Arbitration Location and Procedure.

Unless you and Xooba otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Xooba submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator's Decision.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. Xooba will not seek, and hereby waives all rights Xooba may have under applicable law to recover, attorneys' fees and expenses if Xooba prevail in arbitration.

Fees.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Xooba will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

Changes.
Notwithstanding the provisions of the modification-related provisions above, if Xooba changes this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by providing Xooba written notice of such rejection by mail or by email from the email address associated with your Account to: customerservice@xoobies.com, within 30 days of the date such change became effective, as indicated in the "Last update" date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this "Dispute Resolution" section. By rejecting changes, you are agreeing that you will arbitrate any Dispute between you and Xooba in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

9. Other Provisions
Choice of Law.
These Terms are governed by and construed in accordance with the laws of the State of Delaware, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in supplemental terms applicable to your region. Claims of Copyright Infringement. Claims of copyright infringement should be sent to Xooba's designated agent. Please visit Xooba's web page at www.xoobies.com/legal/usa/copyright for the designated address and additional information.

Notice.
Xooba may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Xooba, with such notice deemed given when received by Xooba, at any time by first class mail or pre-paid post to Xooba.

General.
You may not assign these Terms without Xooba's prior written approval. Xooba may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Xooba's equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Xooba or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Xooba's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Xooba in writing. Xooba’s principal place of business and headquarters is in Chicago, IL; and it is incorporated in DE, authorized to transact business in the state of IL.