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1. This XIONIX CLIENT CONTRACT (the "Agreement") constitutes a
legally binding agreement between Xionix Inc., a Utah corporation
("Xionix") and you ("You" or "Your"). BY CHECKING THE BOX STATING THAT
YOU HAVE READ AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT
AS PART OF YOUR REGISTRATION WITH XIONIX, YOU AGREE AND CONSENT TO BE
BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT FOR AS LONG AS YOU
USE THE XIONIX SERVICES. Subject to the terms and conditions of this
Agreement, Xionix hereby grants to You a non-exclusive, revocable,
right and license, without right to sublicense, to use Xionix's
proprietary online platform, including without limitation the website
made available at www.xionix.com, and any servers, computers or
networks used to provide such website (the "Xionix Services") for the
following limited purposes, if and as applicable, INCLUDING ANY
CHANGES TO THIS AGREEMENT OR ADDITIONAL POLICIES INCORPORATED BY
REFERENCE WHICH XIONIX MAY MAKE IN ITS SOLE DISCRETION IN THE FUTURE.
In the event you transfer your account, any purchasers or assignees
are bound by the terms of this Agreement. In addition to any other
rights or remedies afforded Xionix under or otherwise in connection
with this Contract, You agree and acknowledge that You have read and
agree to comply with the following policies which are hereby
incorporated by reference into, and made a part of, this Agreement: *
Products Requirements Policy * Digital Millennium Copyright Act
("DMCA") and Trademark Policy * Return and Cancellation Policy *
Accounting Policy * Privacy Policy * Security Policy * Network Abuse
Policy * Legal Notice 2. PROMOTING PRODUCTS. If You promote, market or
otherwise advertise ("Promote" or a "Promotion") any product which is
registered for sale via the Xionix Services, either by You or by
another Xionix client (each a "Product"), whether via the Xionix
Services or via any other online or offline channel or medium for the
purpose of earning a percentage of the sale price of any Product sold
as a result of such Promotion ("Commissions"), You agree, acknowledge,
represent and warrant that: 1. You will not suggest or imply any
warranty or other policy with respect to any Products other than
Xionix's Return and Cancellation policy without the prior written
consent of XIONIX, which Xionix may withhold in its sole discretion
for any reason. 2. You will not make any unlicensed or unauthorized
use of or otherwise infringe or misappropriate any materials protected
by any patent, copyright, trademark, trade secret, right of privacy,
right of publicity or other intellectual property, or other
proprietary right ("IP Rights"). 3. You will not interfere with
Xionix's tracking of Commissions, or with the normal flow of traffic
to, through, or from the Xionix Services. 4. All communications and/or
representations made by You in connection with any Promotions and/or
in relation to any Product will be accurate and contain all
disclosures and disclaimers necessary to prevent such Promotions from
being false or deceptive. Such disclosures and disclaimers must be
made in a clear and conspicuous manner, and will otherwise comply with
Your country's laws and all U.S. federal and state laws, including
U.S. Federal Trade Commission regulations, policies and guidelines
governing advertising, disclosure and consumer protection, including
the FTCs endorsement rules. 5. You will not offer, suggest or imply
the availability of any rebates, coupons, tickets, vouchers or similar
incentives to induce or encourage the purchase of a Product. 6. Xionix
reserves the right, but not the obligation, to review your Promotions.
You agree that Xionix, in its sole discretion and at any time, may
demand changes to product promotion and delivery pages, customer
support or other items related to the content of Your Promotions. 7.
You will provide valid contact information, including but not limited
to a working email address and phone number, where Xionix can send
inquiries and receive a non-automated reply by end of the following
business day. 8. All products/programs are licensed per customer and
may not be separated and resold individually. You may not purchase a
limited, unlimited, bulk, site or any other type of multiple licenses
and use the license to service, re-sale, or in anyway transfer the
product/program, for profit or not for profit, to any individual,
company, organization or entity. 4. SENDING EMAILS. If You send, or
cause to be sent, any messages or communications by electronic means,
including but not limited to email and instant messages ("Emails") in
connection with the direct or indirect Promotion or sale of any
Product and/or Your use of the Xionix Services, then You agree,
acknowledge, represent and warrant that all such Emails shall be in
full-compliance with all applicable federal and state laws and
regulations regarding the use of electronic messages, including
without limitation the Controlling the Assault of Non-Solicited
Pornography and Marketing Act of 2003 ("CAN-SPAM Act") and the
Children's Online Privacy Protection Act of 2000 ("COPPA").
(Information on these laws can be found at www.ftc.gov/spam/ and
http://www.ftc.gov/coppa/). Without limiting the generality of the
foregoing, You shall not directly or indirectly: 1. Send, initiate or
procure the sending of an Email to any Person who has either not
explicitly requested to receive such messages specifically from You,
including without limitation for the purposes of sending unsolicited
bulk email, executing any "mass mailings" or "email blasts," or for
the purpose of spamming any public forum, including without
limitation, any blog, message board, classified listings, auction
sites, altnet, newsnet, newsgroups, or similar service. 2. Send,
initiate or procure the sending of an Email to any Person who has
explicitly requested to receive no further Emails from You or Your
company. 3. Employ any false or deceptive information regarding Your
identity, or regarding the intent, subject, or origin of the message
or fail to include accurate information regarding Your identity, and
the intent, subject, and origin of the Email. 4. Employ any
incomplete, invalid, deceptive, fake, or forged message headers. 5.
Use any mousetraps or windows that reappear, spawn new windows or
otherwise resist being closed. 6. Exploit documented or undocumented
security holes on any client or server machine. 7. Fail to (i) include
clear, valid, and conspicuously displayed "From" and "Subject" lines
in the Email, (ii) include a functioning return address (or hyperlink)
in the Email that enables the recipient to submit a request to receive
no further messages from You ("Opt Out Request") for no less than 30
days from the date the Email was sent; or (iii) honor any Opt-out
Request within 10 days of receipt of such Opt-out request by You. 8.
Obtain email addresses via automated means or send any Email to any
address which was obtained via automated means, including via the
automated combination of names, letters, or numbers, dictionary
attacks, or the use of spyware, viruses, or other means of bypassing
system security or invading consumer privacy. 9. Send any Email from,
or make such Email appear to have been sent from, any address that was
obtained via the use of scripts or other automated means to register
for multiple electronic mail accounts or online user accounts from
which to transmit unsolicited or misleading email messages. 10. Send
or relay any Email from any protected computer or network accessed
without authorization. 11. Employ any fraudulent, deceptive, false or
misleading information in connection with the Emails. 12. Send any
commercial marketing Email or Promotion to, or collect any personally
identifiable information from, any person who is under 18 years of
age. 5. SUSPENSION; TERMINATION. You agree and acknowledge that: 1.
Xionix, in its sole discretion, may suspend Your account(s) or hold
any or all funds in Your Xionix account if Xionix suspects or has
reason to believe and/or if a Person otherwise claims that You have
been involved with any of the following: 1. Illegal activity,
including but not limited to, consumer fraud, bank fraud, credit card
fraud, spamming or other illicit commercial activities or any other
activity which violates any federal, state, local or foreign
constitution, treaty, law, statute, ordinance, rule, code, regulation,
interpretation, directive, policy, order, writ, decree, injunction,
judgment, opinion, ruling, decision, permit, license, registration and
other operating authorizations, or any other requirement of, any
federal, state, local or foreign government, legislature, governmental
or administrative agency or commission, any self-regulatory
association or authority, any court or other tribunal of competent
jurisdiction, or any other municipality, governmental authority or
instrumentality or quasi-governmental entity or authority, whether
currently in effect or hereafter enacted or amended ("Law"); 2.
Violation or infringement of any Person's rights, including without
limitation, any IP Rights, 3. Misrepresenting, over-promising, making
false, deceptive or misleading statements or any other acts in
violation of federal or state law affecting consumer protection and
commercial activities; 4. A breach of any term of this Agreement,
including, without limitation, any representation, warranty or
covenant made by You in this Agreement; and 5. Otherwise violating
Xionix rules or policies or interfering with Xionix's business,
including Xionix's Products Requirements Policy. 2. Following the
suspension of an account or holding of funds per this Section 5,
Xionix will review Your account. You acknowledge that this review will
be conducted in a manner decided by Xionix at its sole discretion. You
agree to cooperate with this review. If the review concludes that
there is a reasonable basis to believe misconduct has occurred, You
agree that Xionix may seize and/or retain funds in Your Xionix account
as liquidated damages and/or for the benefit of third parties affected
by the misconduct. You acknowledge and agree that such liquidated
damages: (a) are not a penalty, and (b) are reasonable and not
disproportionate to such presumed damages to Xionix. 3. You understand
that Xionix may also temporarily hold any portion of the funds in Your
Xionix account if Xionix, in its sole discretion, determines such
action is needed to secure payment for, performance of, and/or
assurances regarding any liabilities, obligations, or indebtedness You
may incur with Xionix or any other Person. 4. You agree and understand
that Xionix's right to take any of the actions set forth in this
Section 5 does not constitute a right or obligation to take them for
the benefit of any third parties, including You. 5. You agree and
acknowledge that Xionix may also pursue other remedies as allowed by
Law. 6. In addition to the foregoing, and in addition to all other
rights and remedies available to Xionix at Law or in equity and
notwithstanding anything in the Agreement to the contrary, in the
event You breach any term of this Agreement, upon notice to You (which
may be sent by email), Xionix will have the right to immediately
terminate this Agreement and Your rights to access, use and/or
otherwise participate in the Xionix Services. Upon such termination,
You agree to immediately cease all use of the Xionix Services. Without
limiting the foregoing, Xionix shall have the right to immediately
terminate Your access and use of the Xionix Services, or any portion
thereof, in the event of any conduct which Xionix, in its sole
discretion, considers to be unacceptable. The provisions of this
Section, in addition to any provisions, which by their nature, are
intended to survive, shall survive the termination of this Agreement.
6. XIONIX'S IP RIGHTS. 1. You shall not use Xionix's or any of its
product or services names, trademarks, service marks or any other IP
Right of Xionix in any manner whatsoever to suggest association or
affiliation with or endorsement by Xionix without the express prior
written consent of Xionix, which Xionix may withhold at its sole
discretion. Promotional use of images or reproductions of Payment
checks issued by Xionix without the express, written consent of Xionix
is prohibited. 2. Subject to the following terms and conditions,
Xionix grants You a limited, revocable license to use Xionix's name:
(i) as a watermark, Internet search engine description, keyword,
search term or seeding element with any Internet search engines or
keyword-triggered advertising programs; (ii) in metatags or hidden
text, or (iii) as a sub domain or second or third level domain name
identifier: 1. Xionix may revoke the foregoing license and/or provide
restrictions upon Your use of Xionix's name, including requiring the
use of such disclaimers as Xionix may provide, in connection with Your
use of Xionix's name, at anytime and for any reason in Xionix's sole
discretion. 2. Failure to comply with any restrictions imposed by
Xionix upon Your use of Xionix's name or failure by You to immediately
cease all use of Xionix's name if so instructed by Xionix shall
constitute (1) a breach of the limited license set forth in this
Section 6(2); and (2) a breach of this Agreement. In such case, Xionix
reserves the right to pursue any and all remedies available to it at
Law or in equity. 3. Notwithstanding the limited revocable license set
forth in Section 6(2) above, as between the parties, Xionix shall be
and remain the sole owner of all right, title and interest in and to
the Xionix Services (including, without limitation, all IP Rights
therein) and any other IP Rights, materials or other properties owned,
licensed or controlled by Xionix, and You hereby assign to Xionix all
right, title and interest You may be deemed to have therein. Subject
to the limited rights expressly granted in this Agreement, Xionix
reserves all right, title and interest in and to the Xionix Services
(including, without limitation, all IP Rights therein) and any other
IP Rights, materials or other properties owned, licensed or controlled
by Xionix. All rights not specifically granted to You under this
Agreement are expressly reserved by Xionix. 7. CONFIDENTIALITY (b)
physical and data security information; (c) technical data; (d) Xionix
Affiliate site statistics and sales data; and/or (e) know-how or
business information relating to business processes, methods, or
marketing strategies. Except as required to perform Your obligations
under and in accordance with the terms of this Agreement, You shall
not (i) disclose the Confidential Information to any Person, or (ii)
use the Confidential Information (whether for Your own benefit or the
benefit of any other Person), without the express prior written
consent of Xionix. You shall not use any Confidential Information for
the purpose of soliciting, or to permit any others to solicit, Xionix
Clients to subscribe to any other services or promote the sale of any
product that competes, either directly or indirectly, with Xionix or
the Xionix Services, including without limitation the functionality
offered by the Xionix Affiliate site. You agree and acknowledge that
Xionix may be required to provide to governmental agencies or other
third parties information in its possession regarding You or the
business You conduct with Xionix. 2. Xionix does not invite and cannot
accept any ideas or information You consider to be confidential and/or
proprietary. Except with respect to Your personally identifiable
information (as expressly provided for in the Xionix Privacy Policy),
any suggestions, submissions, comments, ideas, concepts, know-how,
techniques material or feedback conveyed, offered or transmitted by
You to Xionix, or otherwise in connection with the Xionix Services
(collectively, the "Submissions"), shall be deemed to be
non-confidential and non-proprietary and Xionix shall have no
obligation of any kind with respect to such Submissions, unless
otherwise expressly agreed to in a writing executed and delivered by
You and a duly authorized officer of Xionix. You hereby grant to
Xionix and its licensees a worldwide, perpetual, non-exclusive,
fully-paid, royalty-free, transferable right and license, with right
to sublicense, to reproduce, publicly display, distribute, and
perform, transmit, edit, modify, create derivatives works of, publish,
sell, commercially exploit, use, and disclose the Submissions for any
purpose and in all forms and all media whether now known or to become
known in the future. Xionix shall have no obligation to compensate You
for any such Submissions in any manner. You hereby represent and
warrant that: (a) You own or otherwise have the right to grant the
foregoing license to Xionix with respect to Your Submissions; (b) Your
Submissions and any use thereof by Xionix will not infringe or violate
the rights of any Person (including any IP Rights); and (c) Your
Submissions will not contain any unlawful, threatening, abusive,
false, libelous, defamatory, obscene, pornographic, profane, or
otherwise infringing or objectionable content or material of any kind.
You are and shall remain solely responsible for the content of any
Submissions You make and acknowledge that Xionix is under no
obligation to respond to or use any Submission You may provide. 8.
EXPORT CONTROL. You acknowledge and agree to comply with all
applicable export Laws, including the U.S. Export Administration Act,
the Arms Export Control Act, the International Economic Emergency
Powers Act, and the Foreign Corrupt Practices Act; and regulations
issued pursuant to these and other U.S. Laws. You hereby represent and
warrant that any Product promoted, offered and/or provided by You via
the Xionix Services is approved for export from the United States
without additional authorization or licensing from the U.S.
government. Should the export authorization status of Your Products
change, You agree to immediately notify Xionix in writing. For Your
convenience, information on U.S. export control regulations can be
found at the web pages for the Commerce Department
(http://www.bis.doc.gov), the State Department
(http://www.pmddtc.state.gov) and the U.S. Treasury Department
(http://www.treas.gov/offices/enforcement/ofac/index.shtml). 9.
REQUIRED PERMITS. You assume sole responsibility for obtaining and
maintaining all relevant and necessary licenses and permits associated
with the legal operation of Your business. 10. REPRESENTATIONS AND
WARRANTIES. You represent, acknowledge and warrant that: 1. You or
Your Promotions, as applicable, do not and will not, directly or
indirectly: (i) invade the right of privacy or publicity of any
Person; (ii) contain any libelous, obscene, indecent or otherwise
unlawful material; (iii) infringe any IP Rights in any jurisdiction or
otherwise contravene any rights of any Person; or (iv) violate any
Law. 2. You shall not: (i) frame, copy or mirror any content forming
part of the Xionix Services; (ii) reverse engineer of the Xionix
Services or otherwise attempt to derive its source materials; (iii)
access the Xionix Services for the purpose of (A) building a
competitive product or service, or (B) copy any features, functions or
graphics of the Xionix Services; (iv) interfere with or disrupt the
Xionix Services or any data contained therein; (v) attempt to gain
unauthorized access to the Xionix Services, its related systems or
networks; or (vi) use the Xionix Services for any unlawful purpose or
in violation of the rights of any Person. 11. INDEMNIFICATION. To the
fullest extent permitted by Law, You agree that 1. In the event that a
Party commences any action or files any claim whatsoever ("Claim") in
connection with Your use of the Xionix Services, Product, or Promotion
You shall defend, indemnify and hold harmless Xionix, its related
parties and affiliates, and its officers, directors, employees,
representatives, agents, licensors, attorneys, heirs, successors, and
assignees (the "Xionix Parties"), from and against any and all
damages, liabilities, claims or costs (including, without limitation,
the costs of investigation and defense and reasonable attorneys' fees
and litigation and court costs) ("Losses") incurred by any Xionix
Party as a result of such Claim, regardless of whether such Losses are
direct, incidental, consequential, punitive or statutory. 2. Upon
receiving notice of any Claim for which Xionix is entitled to
indemnification by You, Xionix shall provide You with written
notification and opportunity to assume sole control over the defense
or settlement of the Claim and reasonable assistance to settle and/or
defend the Claim at Your sole expense; provided, however, that (i) any
settlement which would impose an unindemnified monetary obligation on
and/or admission or finding of liability or wrongdoing by Xionix will
require Xionix's prior express written consent; and (ii) failure to
provide timely notice, control, or assistance shall not relieve You of
Your obligations; and (iii) Xionix may have its own counsel present at
and participating in all proceedings or negotiations relating to a
Claim, at Xionix's own expense, unless You fail or refuse to secure
legal counsel to defend any Claim in a timely manner, in which case
You shall pay all expenses related to Xionix's use of such counsel. 3.
In the event that Xionix incurs costs, attorneys' fees or other
expenses responding to any complaint other than a Claim, in connection
with or relation to Your Products or Promotions, including complaints
under the DMCA, Xionix reserves the right, in its sole discretion, to
recover such costs and expenses by deducting a reasonable,
commensurate amount from any monies owed to You by Xionix up to a
maximum of $5500 per event. You authorize, and release Xionix from any
liability in connection with, such deductions. 12. LIMITATION OF
LIABILITY. IN NO EVENT SHALL ANY XIONIX PARTY, OR ITS HEIRS,
SUCCESSORS AND ASSIGNS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF,
RESULTING FROM, OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY (A)
USE OF OR INABILITY TO USE THE XIONIX SERVICES, (B) PERSONAL INJURY,
PROPERTY DAMAGE, OR LOSSES OF ANY KIND WHATSOEVER, RESULTING FROM YOUR
ACCESS TO AND/OR USE OF THE XIONIX SERVICES, (C) UNAUTHORIZED ACCESS
TO OR USE OF ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL
INFORMATION STORED THEREIN, (D) INTERRUPTION OR CESSATION OF
TRANSMISSION TO OR FROM THE XIONIX SERVICES, AND/OR (E) BUGS, VIRUSES,
TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE
XIONIX SERVICES, WHETHER OR NOT XIONIX IS ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE
MAXIMUM CUMULATIVE AND AGGREGATE LIABILITY OF XIONIX FOR ALL COSTS,
LOSSES OR DAMAGES FROM CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO
THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT
EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNTS DUE AND PAYABLE BY XIONIX
TO YOU UNDER THIS AGREEMENT FOR THE MONTH IMMEDIATELY PRECEDING THE
DATE UPON WHICH SUCH DAMAGES ACCRUE. THE LIMITATION OF LIABILITY
HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND
REFLECTS A FAIR ALLOCATION OF RISK. THE XIONIX SERVICES, AND ANY
SERVICES OR INFORMATION OFFERED THROUGH THE XIONIX SERVICES, WOULD NOT
BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE
LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED HEREIN WILL SURVIVE
AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
CERTAIN CATEGORIES OF DAMAGES, IN SUCH JURISDICTIONS, YOU AGREE THAT
THE LIABILITY OF XIONIX SHALL BE LIMITED TO THE FULLEST EXTENT
PERMITTED BY SUCH JURISDICTION. 13. GENERAL TERMS AND CONDITIONS. 1.
Governing Law; Dispute Resolution. You agree that Utah law will govern
this Agreement, other than such laws, rules, regulations and case law
that would result in the application of the laws of a jurisdiction
other than the State of Utah, and that any action, suit, proceeding,
or claim arising out of or related to this Agreement must be brought
exclusively in federal or state courts located in Salt Lake City,
Utah. You hereby submit to the in personam jurisdiction and venue of
such courts and waive any objection based on inconvenient forum. YOU
HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, PROCEEDING, CLAIM OR COUNTERCLAIM ARISING UNDER OR IN
RELATION TO THIS AGREEMENT. 2. English is Governing Language. This
Agreement is in English and all and all disputes between the parties
shall be resolved in English. You understand and acknowledge that any
foreign language services provided by Xionix are for informational
purposes only and it is your obligation to obtain independent legal
advice at your own expense to ensure you understand the terms of this
Agreement. 3. Our Relationship. This Agreement does not create any
relationship of principal and agent, partners, joint venturers,
employer and employee, fiduciary or similar relationship between the
parties. You agree that any content stored on Xionix's servers in
relation to any Products registered by You via the Xionix Services is
solely at Your direction and nothing contained in this Agreement nor
in Your use of the Xionix Services, shall be construed as shifting
responsibility for such publication to Xionix. You are not authorized
to make any promise, warranty or representation on behalf of Xionix or
obligate or attempt to obligate Xionix in any manner whatsoever. You
shall not represent to any person that You are the agent of Xionix,
nor fail to correct any misunderstanding as to such status. 4.
Assignment. Xionix may freely assign or transfer any or all of the
rights and obligations described under this Agreement without Your
consent and without notice to You. You may not assign this Agreement
or any of Your rights and duties hereunder without the prior written
consent of Xionix. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
assigns. 5. Severability. If any provision of this Agreement is
declared or determined by any court to be unenforceable or invalid:
(i) the validity of the remaining parts, terms or provisions shall not
be affected by that determination; (ii) the unenforceable or invalid
part, term or provision shall not be deemed to be part of this
Agreement; and (iii) such court may substitute a provision that is
legal and enforceable and is as nearly as possible consistent with the
intentions underlying the original provision. If the remainder of this
Agreement is not materially affected by such declaration or finding
and is capable of substantial performance, then the remainder shall be
enforced to the extent permitted by applicable law. 6. Publicity. You
shall not issue or make any publicity release (including press
releases and advertising or solicitation materials) or other public
statement: (i) relating to this Agreement; (ii) using Xionix's name or
referencing the Xionix Services; or (iii) suggesting or implying any
endorsement by Xionix of You and/or any Products without the prior
written approval of Xionix, which Xionix may withhold at its sole
discretion. 7. Entire Agreement; Amendment. This Agreement constitutes
the complete and exclusive agreement between the parties relating to
the subject matter hereof. It supersedes all prior proposals,
understandings and all other agreements, oral and written, between the
parties relating to this subject matter. Xionix reserves the right to
amend this Agreement at any time. When Xionix amends this Agreement,
Xionix shall make reasonable efforts to provide You with general, not
specific, notice of such changes by posting a conspicuous announcement
at www.xionix.com that; (i) such changes or amendments have occurred;
and (ii) identifying which particular provisions have changed. Such
announcement shall be maintained for no less than 30 days following
the effective date of such amendment. Your continued use of the Xionix
Services, following the posting of such amendment will signify and be
deemed Your assent to and acceptance of the revised Agreement. You
agree that You have the burden to periodically review www.xionix.com
to inform Yourself of any such changes. 8. Waiver. The waiver or
failure by Xionix to exercise any right provided for herein will not
be deemed a waiver of any further right hereunder. The rights and
remedies of Xionix set-forth in this Agreement are cumulative and are
in addition to any rights or remedies Xionix may otherwise have at law
or equity, except with respect to any sole and exclusive remedies
expressly provided for herein. 9. Equitable Actions. You acknowledge
and agree that any breach or threatened breach of this Agreement may
cause immediate and irreparable harm to Xionix which would not be
adequately and fully compensated by money damages and that Xionix may
seek injunctive relief, specific performance, and/or other equitable
relief as a remedy for any such breach or anticipated breach without
the necessity of posting a bond or other security. Notwithstanding any
other provision of this Agreement, any such relief may be sought in
the state or federal courts of the State of Utah or any other court of
competent jurisdiction anywhere in the world (at Xionix's sole
discretion), and, You hereby consent to the jurisdiction of any such
court and waive any objection to venue laid therein. Any such relief
shall be in addition to and not in lieu of any appropriate relief in
the way of monetary damages. 10. Force Majeure. Xionix shall not be
responsible for delays or failures in performance resulting from acts
of God, strikes, lockouts, riots, acts of war and terrorism,
embargoes, boycotts, changes in governmental regulations, epidemics,
fire, communication line failures, power failures, earthquakes, other
disasters or any other reason where failure to perform is beyond the
control of, and not caused by, Xionix. 11. Notices. Except as
otherwise expressly provided herein, any notice, request, approval,
authorization, consent, demand or other communication required or
permitted to be given or made pursuant to this Agreement shall be in
writing and shall be deemed given on the earliest of: (i) actual
receipt, irrespective of the method of delivery; (ii) the time of
transmission from Xionix if sent via email, as date stamped by
Xionix's systems; (iii) on the delivery day following dispatch if sent
by express mail (or similar next day air courier service); or (iv) on
the sixth (6th) day after mailing by registered or certified United
States mail, return receipt requested, postage prepaid and addressed
to the last address provided by a party. 12. Headings/Interpretation.
The table of contents and the descriptive headings are for convenience
only and shall not control or affect the meaning or construction of
any provision of this Agreement. DISCLAIMER. YOU ASSUME ALL RISK AND
RESPONSIBILITY FOR YOUR DECISION TO USE THE XIONIX SERVICES. THE
XIONIX SERVICES AND ALL RELATED SERVICES ARE OFFERED "AS IS" AND
XIONIX DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Yes, I have read and
agreed to the terms ">* All fields are required
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