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    • Xtify Terms of Service

      XTIFY CLIENT AGREEMENT

      This offer is conditioned on your agreement to all of the terms and conditions contained in the Terms of Service, including your compliance with the policies and terms linked to (by way of the provided URLs) from this Agreement. By using Xtify, you agree to these Terms of Service. If you do not so agree, you should decline this agreement, in which case you are prohibited from accessing or using Xtify. Xtify may amend this Agreement at any time in its sole discretion, effective upon posting the amended Agreement at the domain www.xtify.com where the prior version of this Agreement was posted, or by communicating these changes through any written contact method we have established with you.

      1. The Xtify Service.

      Xtify offers marketers, publishers, advertisers, businesses, and developers ("Client") the ability to send location-triggered messages to mobile users. This is accomplished with a SDK or application that is installed on an end-user’s mobile device and a server that administers the messaging. The delivery of location information on end-users through the infrastructure described in the preceding sentence is referred to herein as the "Xtify Service." In order to develop for and access the Xtify Service you agree to all the terms set forth herein. You also agree to have read the Xtify User Agreement and consent to the terms set forth there.

      2. Registration.

      You agree to provide all the information required in the registration path on Xtify and to provide completely truthful information. You are registering for the Xtify Service because you intend to build a location based service ("Application")

      3. Terms of Service.

      Provided that you comply at all times with the terms of this Xtify Developer Agreement ("Terms of Service"), Xtify ("Xtify") will provide you with an SDK or application and access to web-based console to enable location-triggered messaging. Xtify hereby grants and you hereby accept, a non-exclusive, non-transferable and limited license (but not to alter in any way or sublicense except as permitted hereunder) to use the Xtify Service The licenses granted in Section 3 are subject to the following conditions and restrictions: you shall not (a) disassemble, de-compile, reverse engineer or otherwise try to discover the source code for the Xtify Service except to the extent allowed by law, (b) sublicense, rent, lease, lend or otherwise transfer the Xtify Service or any related database, (c) not use the Xtify Service to provide processing services to third parties or otherwise use the Xtify on a service bureau basis, electronically distribute for the purpose of creating a service bureau or timeshare the Xtify Service, and (d) not intentionally remove or alter any patent or copyright notices, proprietary markings, trademarks or trade names from the Xtify Service; (e) compile or extract, directly or indirectly, all or large portions of the data from the Xtify Service, including any related database; or (f) grant access to the Xtify Service to any person or entity that is not an authorized user.4. Use of Data and Privacy Policy.  You agree to post clearly on your site and in a privacy policy exactly how the data you gather will be used and the terms under which it will be stored. You agree that you will not build an application that is in any way libelous, illegal or that condones libelous or illegal behavior. You agree to modify your storage policies from time to time to be consistent with Xtify storage policies which may be modified from time to time.

      4. Use of Data and Privacy Policy.

      You agree to post clearly on your site and in a privacy policy exactly how the data you gather will be used and the terms under which it will be stored. You agree that you will not build an application that is in any way libelous, illegal or that condones libelous or illegal behavior. You agree to modify your storage policies from time to time to be consistent with Xtify storage policies which may be modified from time to time.

      5. Responsibility for Your Application.

      You agree that you will be entirely responsible for your Application, including content included therein.

      6. Customer Service.

      You agree that you will be responsible for all customer service associated with Users of your Application, including issues that relate to the Xtify Service.

      7. Compliance with Applicable Laws.

      You agree at all times to apply with applicable federal, state and local laws and regulations in the United States as well as any other laws for any other jurisdictions whether in the United States or elsewhere in the world that you may be subject to. Your application will not promote any illegal activities, nor will it promoting spamming of any kind.

      8. Integrity of User Data.

      You will not seek to access User location information in any way other than that expressly prescribed by the Xtify Service.

      9. Application Guidelines.

      You will not build any Application or functionality or program that will cause Xtify to function in a way other than it is expressly intended to perform. You acknowledge that Xtify may restrict what it defines in the future as excessive use of the Xtify Service.

      10. Age Requirement.

      Your users must be thirteen (13) years of age to use the Service in addition to whatever age requirements you set forth as the developer of the Application.

      11. Communication to users of your Application regarding Xtify Service.

      You agree to notify your users as appropriate and provide access to settings screens that will enable end-user opt in or out of Xtify Service:

      • Location Updates. Client will notify users that their device’s geo location will be accessed by client’s application. Clients will provide end-users with access to settings to disable location updates.
      • Notification Enablement. Clients will notify end-users that they may be delivered notifications directly to their device. Client will provide end-users with access to settings to disable notifications.
      • Use of Data Connection. Clients will notify their end-users that the Xtify Service will send a small amount of data to and from the device on a regular basis. For users without a flat rate data plan, a cost may be incurred from the mobile carrier.

      12. Advertising and Promotions.

      Your advertising and promotions for your Application that utilizes the Xtify service shall be truthful and not misleading in any way.

      13. Compliance with these Terms.

      You will provide any and all materials that Xtify may request from time to time to ensure your complete compliance with the Terms articulated herein.

      14. Fees.

      Fees must be paid according to the package you choose. Services may be discontinued if fees remain unpaid for 30 days.

      15. Competitive Services.

      Xtify reserves the right to develop any application on the Xtify Service that it so chooses. Nothing herein shall be interpreted to suggest that Xtify will not in the future directly compete with your application.

      16. Monitoring your Application.

      You acknowledge that Xtify may audit or monitor your application and further your users to ensure compliance with these Terms of Service. Xtify in its sole discretion may suspend your usage of the Xtify Service during such monitoring, and may terminate or suspend your use of the Xtify Service if in its sole discretion it believes you are violating these Terms of Service or the spirit of these Terms of Service. Developer accounts that have no activity for more than 90 days may also be suspended or terminated.

      17. Xtify Maintenance.

      You acknowledge that the Xtify Service will experience interruptions, both planned and unplanned, from time to time as Xtify performs maintenance operations.

      18. Accuracy of Data.

      You acknowledge that there are NO GUARANTEES to the accuracy of the data or the accuracy of your user’s location. It should be expected by you that at times the location Xtify provides to you will be inaccurate and sometimes significantly so with respect to time and location. You should not rely on Xtify location data for any mission critical business application or reason of personal safety or that of the personal safety of others. Regardless of how you use Xtify generated location data, you acknowledge and agree that you do so at your sole risk.

      19. Warranty Disclaimer.

      Because of situations beyond the control of Xtify, Xtify cannot guarantee that its Service will be available to you or your customers. Xtify does not guarantee the safety or integrity of any system accessing the Service. This includes, but is not limited to, virus and/or trojan software infestation of said machine(s), hacker activity and exposure of confidential data. By using the Service, you acknowledge that you are solely responsible for the safety of your hardware, software, and data for the duration of your use of the Service. You also accept liability for any of your actions while offering the Service. You understand that the technical processing and transmission of the Xtify Services, including data transmitted to and from your Application, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

      THE XTIFY SERVICE AND XTIFY DOCUMENTATION ARE PROVIDED BY XTIFY ON AN "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS, DEFECTS AND ERRORS" BASIS. XTIFY AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE XTIFY SERVICE OR XTIFY DOCUMENTATION. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE XTIFY SERVICE IS AT YOUR SOLE RISK. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, XTIFY AND ITS LICNSORS DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY IMPLIED WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. XTIFY DOES NOT WARRANT THAT THE XTIFY SERVICE IS FREE OF VIRUSES, WORMS, TROJANS, SPYWARE OR OTHER HARMFUL COMPONENTS, OR THAT THEY WILL BE ACCESSIBLE ON A PERMANENT BASIS OR WITHOUT INTERRUPTION.

      XTIFY OR ITS LICENSORS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF, OR INABILITY TO USE THE XTIFY SERVICE, INCLUDING DAMAGE ARISING FROM XTIFY DISABLING WITHOUT CAUSE OR REASON YOUR APPLICATION, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST DATA, BUSINESS OR ANTICIPATED PROFITS, WHETHER OR NOT XTIFY WAS AWARE OF OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

      20. Release.

      You hereby irrevocably and unconditionally release and covenant not to sue or pursue any other claim against Xtify, or any of its licensors, assigns or successors, for any and all damages, liabilities, causes of action, judgments, and claims you may suffer as a result of your usage or reliance on the Xtify Service.

      21. Links.

      The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Xtify has no control over such sites and resources, you acknowledge and agree that Xtify is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Xtify shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.

      22. Indemnity.

      You agree to indemnify, defend and hold harmless Xtify and its licensors and their affiliates, officers, directors, employees, consultants, agents and representatives from any and all third party claims, losses, liability, damages and/or costs (including reasonable attorneys' fees and costs) arising from your use of the Service, your violation of the Terms of Acceptable Use or your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity.

      23. Ownership of the Service.

      Xtify owns all right, title, and interest in and to the Service, the Site and all portions thereof, including but not limited to any related database. Xtify is a trademark of Xtify, Inc. Nothing provided by the Service or contained on the Site should be understood as granting you a license to use any of the trademarks, service marks or logos owned by Xtify or by any third party, unless expressly provided otherwise herein. You acknowledge that nothing herein shall give you any ownership in the Xtify Service or any portions thereof.

      24. Other.

      XTIFY MAY IN ITS SOLE DISCRETION AND WITHOUT ANY NOTICE PRIOR OR OTHERWISE REVISE THE TERMS AND CONDITIONS OF THIS AGREEMENT (INCLUDING ANY ONLINE POLICY SUCH AS THE TERMS OF SERVICE AND MODIFY THE SERVICE AT ANY TIME OR MODIFY OR DISCONTINUE, TEMPORARILY OR PERMANENTLY, THE XTIFY SERVICE (OR ANY PART THEREOF). You agree that Xtify shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Xtify Service (or any part thereof).XTIFY MAY POST ANY SUCH REVISION OR MODIFICATION TO THE SERVICE AT WWW.XTIFY.COM/TERMSOFSERVICE, AND THE REVISION OR MODIFICATION WILL BE EFFECTIVE IMMEDIATELY UPON SUCH POSTING. YOU AGREE TO REVIEW THIS AGREEMENT AND THE ONLINE POLICIES AS POSTED ON THE SITE PERIODICALLY TO BE AWARE OF ANY REVISIONS. YOU AGREE THAT, BY CONTINUING TO USE THE SERVICE FOLLOWING NOTICE OF ANY REVISION, YOU AGREE TO ABIDE BY ANY SUCH REVISION. IF YOU ARE DISSATISFIED WITH THE SERVICE OR ANY RELATED TERMS, CONDITIONS, RULES, POLICIES, GUIDELINES, OR PRACTICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE AND TERMINATE YOUR ACCOUNT.

      25. Governing Law.

      The validity and performance of this Agreement shall be governed by the laws of the State of New York. Any dispute arising from or in connection with this Agreement shall be subject to binding arbitration in New York in accordance with the commercial rules of the American Arbitration Association, and judgment up on the arbitral awarded rendered may be entered in any court having jurisdiction thereof. The prevailing party in any dispute under this section shall recover reasonable attorney's fees and costs (including arbitration costs) from the other party.

      26. General Terms

      If, for whatever reason, a court of competent jurisdiction were to find any term or condition in this Agreement to be unenforceable, all other terms and conditions would remain unaffected and in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. The Service is controlled and operated by Xtify. This Agreement, and all other online policies promulgated by Xtify, constitutes the entire agreement between Xtify and you with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein.