Xooloo Terms of use

Dated December 21st, 2022

We make Xooloo Messenger (the “Application”) available to you subject to the following terms of use (“Terms of Use” or “Agreement”). By accessing or using the Application or any other applications or website made available by Xooloo SAS and/or at www.xooloo-messenger.com and related websites including www.xooloo-messenger.com/parent (collectively, the “Site” and together with the Application, the "Service"), however accessed, you agree to be bound by these Terms of Use. By accessing the Application on Google Play or on Apple Store or on the Site, you accept these Terms of Use. Please read them carefully. Technical specifications: This Application currently supports devices running Android versions 5.0 and above for Android mobile and iOS 12 for iOS mobile (“Devices”) with display screens of at least 3.5 inches diagonal. IN PROVIDING THE SERVICE, XOOLOO MAY BE USING THE GOOGLE PLAY PLATFORM OR THE APPLE APP STORE PLATFORM FOR DOWNLOADING THE APPLICATION. IN THAT EVENT, THE USE OF XOOLOO'S SERVICES IS SUBJECT TO ADDITIONAL TERMS AND AGREEMENTS ENFORCED BY GOOGLE AND APPLE AND FUTURE AMENDMENTS THERETO, IF ANY, INCLUDING THE GOOGLE AND APPLE TERMS OF SERVICE AND THE GOOGLE PLAY AND APPLE STORE BUSINESS AND PROGRAM POLICIES (CURRENTLY FOUND AT http://play.google.com/about/android-developer-policies.html and http://www.apple.com/legal/internet-services/itunes/us/terms.html respectively). ). This Agreement is between you (“you”) and Xooloo SAS (“Xooloo”) pursuant to which Xooloo is prepared to grant you access to the Application. Xooloo reserves the right to change these Terms of Use from time to time at its sole discretion, and your rights under these Terms of Use will be subject to the most current version of these Terms of Use posted on this page at the time of your use or purchase. If you do not agree with these or revised Terms of Use, do not use the Application or purchase any related application. This Agreement is in addition to your rights and obligations under the Privacy Policy. For the avoidance of doubt, in the event of a conflict between these Terms of Use and the Privacy Policy or other terms and conditions related to the Application, these Terms of Use will control. If you are unsure of your rights under these Terms of Use, please contact us at info@xooloo.com 1. ACCOUNT AND REGISTRATION The Application makes available services that make your family’s digital experience more enjoyable and of better quality. Before making purchases and using our Service, you will need to register as a user, agree to these Terms of Use and establish your account (“Account”). You represent and agree that all registration and billing information provided by you is accurate and up-to-date. As part of your registration, you will give us certain personal information which we will use only in accordance with our Privacy Policy. By agreeing to these Terms of Use, you are also consenting to receive marketing and advertisement e-mails and other communications from us from time to time. You may opt out of these emails or modify your device settings at any time when you receive marketing and advertisement e-mails or notifications from us. In order to use the Application, you must be 13 years of age or older. If you are under 13 or between 13 and 18 years of age (or such older age as required by the laws of your state of residency), you must have your parent’s or legal guardian’s permission to use the Application and download it from Google Play, the Apple App Store or the Site. You must have a parent or a legal guardian approve all information and ensure that the parent’s or legal guardian’s email address and contact information is used to request a parent’s consent. You must not access the Application or accept these Terms of Use if you are a person who is either barred or otherwise legally prohibited from receiving or using the Service or any application under the laws of the country in which you are resident or from which you access or use the Application. If you use this Application and become a registered customer with us, you are responsible for maintaining the confidentiality of your password and for restricting access to your Application, and you agree to accept responsibility for all activities that occur under your password. Xooloo reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole and reasonable discretion. 2. INTELLECTUAL PROPERTY - LICENSES – RESTRICTIONS The Application and the Site contain content, such as database and related content or designs owned or licensed by Xooloo ("Xooloo Content"). Xooloo Content is protected by copyright, trademark, design right, patent, trade secret and other laws, and, as between you and Xooloo, Xooloo owns and retains all rights in the Xooloo Content and the Application. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Xooloo Content, and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Xooloo Content. Nothing in the Terms of Use grants you a right or license to use any trademark, design right or copyright owned and controlled by Xooloo or any other third party except as expressly provided herein. Application Ownership - License. Xooloo grants you a limited license to access and make personal use of this Application. However, you may not download, manipulate or modify it, or any portion of it, without our express written consent. Restrictions on Use of Application. This license does not include any resale or commercial use of this Application or any of its contents, and you may not reproduce, copy, sell, resell, access or otherwise exploit all or any portion of this Application for any commercial purpose without our express written consent. You may not use or reproduce Xooloo’s name, trademarks, service marks or logos or other proprietary information of Xooloo without our express written consent. The Application, including but not limited to its graphics, logos, page headers, icons and service names and database content constitute the property of Xooloo and its affiliates. Other trademarks that appear on the Application are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Xooloo. Any images of persons or personalities contained on the Application are not an indication or endorsement of Xooloo or any particular product unless otherwise indicated. You may not use the Application in conjunction with any stream-ripping, stream capture or similar software to record or create a copy of any Service or related content that is presented to you in streaming format. You may not use the Application as part of any service for sharing, lending or multi-person use, or for the purpose of any other institution, except as specifically permitted and only in the exact manner specified and enabled by these Terms of Use. You may not attempt to, nor assist, authorize or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect, obfuscate or otherwise restrict access to the Application. Violations of any security feature may subject you to civil or criminal liability. IF YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT OR DATA FROM THE SERVICE, YOU DO SO AT YOUR OWN RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY ASSOCIATED DAMAGES TO YOUR DEVICE OR LOSS OF DATA. 3. SERVICES - CUSTOMER SERVICE Each transaction will be confirmed to you upon the commencement of performance by Xooloo. All sales are final upon payment to Xooloo by you. All Services sold to you by Xooloo are subject to these Terms of Use. 4. DESCRIPTION Xooloo aims to be as accurate as possible in its Service descriptions. However, Xooloo does not warrant that Service and price descriptions or other content of this Application are accurate, complete, reliable, current, or error-free. If a service offered by Xooloo is not as described, your sole remedy is to unsubscribe from your Xooloo account or uninstall the Application. Xooloo and its licensors, if any, disclaim any and all responsibility or liability for the accuracy, content or legality of information or material provided on or through the Service. 5. DISCLAIMERS OTHER THAN AS MAY BE SPECIFICALLY INCLUDED WITH THE SERVICE, ALL SERVICES AND CONTENT INCLUDED IN OR OBTAINED THROUGH THE APPLICATION OR THE SERVICE ARE PROVIDED "AS IS," WITH NO WARRANTIES. XOOLOO, ITS LICENSORS AND SERVICE PROVIDERS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES FOR THE SERVICE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. XOOLOO AND ITS LICENSORS, IF ANY, AND SERVICE PROVIDERS DISCLAIM ANY AND ALL LIABILITY TO ANY USER OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ANY CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, (EVEN IF XOOLOO, ITS LICENSORS AND/OR ITS SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). XOOLOO DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES ARISING FROM ANY TRANSACTIONS BETWEEN YOU AND THIRD-PARTY BUSINESSES OR SERVICE PROVIDERS. THE TOTAL AGGREGATE LIABILITY OF XOOLOO, ITS LICENSORS AND ITS SERVICE PROVIDERS FOR ANY CLAIM ARISING FROM OR RELATED TO THE APPLICATION AND TRANSACTIONS THEREON IS LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU IN THE PRECEDING TWELVE MONTHS FOR THE SERVICE PURCHASED THROUGH THIS APPLICATION WHICH RELATES TO SUCH CLAIM OR US $100, WHICHEVER IS LOWER. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW. BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY," AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY. Xooloo reserves the right to perform any routine or emergency updating or upgrading maintenance work that may limit or suspend the availability in whole or in part of the Application. You may need to install updates to Google Play or the Apple IOS, or related software that Google or Apple introduce from time to time to access or download the Application or updates we may provide from time to time to the Application, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions (collectively, "Updates"). Xooloo is not responsible for any third party websites or content that you may be able to access through the Application. You are responsible for reading these third parties’ terms of use and privacy policies. Software related to, or made available by, the Service may be subject to United States export controls. Thus, no software from the Service may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software related to the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list. 6. CUSTOMER SERVICE Our customer service can be reached via e-mail at: info@xooloo.com. 7. PURCHASE PRICE All offers made through the Application on a fee basis are priced in your local currency. Applicable taxes will be added to all stated purchase prices. All prices and conditions of purchase are indicated on the Application or the Site and are not subject to adjustment except by Xooloo if it determines in its sole discretion that an error occurred. Payment for the Application is due immediately upon ordering and paid directly to Xooloo. Your Internet access and Device usage are subject to telecommunication service charges to be invoiced to you directly by your Internet service provider and your telecommunication provider. 8. TERMINATION BY XOOLOO Xooloo reserves the right to also suspend or terminate your use of the Application at any time, without penalty, for any reason, including in the event that you are in breach of any terms of these Terms of Use, for willful misconduct, or if you have attempted to, or have disparaged, defamed or tarnished Xooloo’s reputation or that of any third party, and/or misused any intellectual property rights of Xooloo or any third party. There is no tolerance for objectionable content or abusive users. Offending content will be removed and abusive users excluded within 24 hours from detection. 9. INDEMNIFICATION At Xooloo’s request, you (and also any third party for whom you operate an account or activity on the Service) shall defend, indemnify, and hold harmless Xooloo, its affiliates, licensors, service providers, and each of their employees, contractors, directors, investors, licensors and sublicensees, and representatives (“Xooloo Parties”) from all losses, costs, actions, claims, damages, expenses (including reasonable legal costs) or liabilities, that arise from or relate to any of the following (including as a result of your direct activities on the Service or those conducted on your behalf): (i) your access to or use of the Service; (ii) your breach or alleged breach of these Terms of Use; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you (each, a ”Claim”), provided that we: (a) promptly give you written notice of the Claim; (b) give you sole control of the defense and settlement of the Claim (provided that you may not settle or defend any Claim unless it unconditionally releases us of all liability); and (c) provide you with all reasonable assistance, at your expense. 10. REGULATORY COMPLAINTS AND INFRINGEMENT We will cooperate with any law enforcement authorities and comply with any judicial order requesting or directing us to disclose the identity of anyone accessing, transacting, registering, and/or otherwise using the Application and the Service in violation or alleged violation of any applicable federal, state, or local laws. Xooloo respects the intellectual property rights of others and expects users of the Application to do the same. We provide you with tools to help you protect your intellectual property rights. If you believe in good faith that any material available on or accessible through the Services infringe upon your copyright, then you (or your agent) may send Xooloo a notice requesting that Xooloo remove the material or block access to it. Similarly, if you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, then you may send Xooloo a counter-notice. Notices and counter-notices must include the following information and be sent to Xooloo at Xooloo SAS, 20 rue Danielle Casanova, 75002 Paris, France: • a description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Service where the material you claim is infringed is located; • a description of the location where the original or an authorized copy of the copyrighted work exists – for example, the URL (Internet address) where it is posted or the name of the book in which it has been published; • your address, telephone number, and e-mail address; • a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; • a statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright Owner or authorized to act on the copyright owner’s behalf; and • an electronic of physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest. 11. GENERAL This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous written or oral agreements between the parties with respect to such subject matter. A printed version of these Terms of Use and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. This Agreement must be construed in accordance with the laws of the United States of America, State of New York without regard to its conflict of laws rules, and shall be resolved individually, without resort to any form of class action. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods. You agree that any claim you may have arising out of or related to your relationship with Xooloo must be filed within one year after such claim arose; otherwise, your claim is permanently barred. In addition, you agree that prior to filing any such claim, you will use reasonable efforts to inform us of such claims and to attempt to resolve the dispute through good faith negotiations. The parties irrevocably consent to submit to the jurisdiction of state and Federal courts, as applicable, of the United States of America, State of New York located in New York County, New York on matters arising out of these Terms of Use. Notwithstanding this, you agree that Xooloo will still be allowed to apply for injunctive relief in any jurisdiction (without limitation of any other rights or remedies otherwise available to Xooloo and without the necessity of posting a bond). No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Use remain in full force and effect. If any part of these Terms of Use is found by any court to be invalid, illegal or unenforceable, that part shall be discounted and the rest of these Terms of Use shall continue to be valid and enforceable to the fullest extent permitted by law. This Agreement cannot be altered or modified in any way without the prior written consent of Xooloo. If you are acting as an agent for a principal (including on behalf of your employer), you and the principal, jointly and severally, assume all of your obligations set forth in these Terms of Use. The rights and liabilities of the parties hereto shall bind and inure to the benefit of their respective successors, heirs, executors and administrators, as the case may be. Xooloo is not responsible for any Service access default or delay due to maintenance or causes beyond its control including, without limitation, strikes, lock outs, shut down of internet connections or communication services by providers, cyber-attacks. Xooloo shall not be liable for default or delay in the performance of its obligations due to cause beyond its control. Please review our Privacy Policy incorporated herein by reference.