WIXAL TERMS OF SERVICE

Last updated: June 1, 2017

Welcome to Wixal!

Wixal provides services for the creation, among other products, of custom websites and audiovisual presentations for the marketing of real property listings.

These Terms of Service (“Terms”) cover your use of and access to the websites, photographs, videos, audiovisual works, and other products, services, applications, tools and features (collectively, the “Services”) provided by Jum Mum, Inc., d/b/a Wixal (together with its officers, directors, employees, agents, subsidiaries and affiliates, “Wixal,” “us,” “our” and “we”).

Please read these Terms carefully before using our Services. By accessing and using our Services, you explicitly agree to comply with and be bound by these Terms. If you are using the Services for an organization, you are agreeing to these Terms on behalf of that organization, and represent and warrant that you can do so.

1. Your Account

In order for Wixal to provide you with Services, you must provide Wixal with certain personal, business and payment information about yourself and/or your organization. You represent and warrant that: (a) all required information you submit is truthful and accurate, and (b) you will maintain the accuracy of such information. You are responsible for notifying Wixal of any unauthorized use, or suspected unauthorized use of any personal or financial information, or any other breach of security that may involve the information provided for any Services. Wixal cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.

2. Your Content

To provide you with Services, Wixal needs certain licenses from you to display, reproduce, modify and store any photographs, video, audio, text, data or other content (“User Content”) you provide to Wixal. For example, Wixal needs the right to publicly display the User Content to allow it to display the User Content on the computer monitor of any party who is not the copyright holder. Wixal needs the right to reproduce the User Content so that it can be incorporated and hosted on a website. Wixal needs the right to create derivative works and to modify the User Content, for example, when editing photographs or video, or when adding voiceovers to User Content.

By submitting User Content to Wixal, you hereby grant Wixal a worldwide, nonexclusive, revocable, royalty-free, fully paid, sublicensable and transferable license to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display, distribute and transmit the User Content (1) for the purpose of providing you, and those with whom you have shared your presentations (including the public), with Wixal’s Services; and (2) in connection with promotion and marketing of Wixal’s Services, including, without limitation, allowing third parties to search or index the User Content, in connection with e-mail and other promotions, product demonstrations, and the like. This license ends within a commercially reasonable time after you request that Wixal remove or delete your User Content, or when it is removed or deleted at the discretion of Wixal, except (1) to the extent that your User Content has been shared with others and they have not deleted it; and (2) that Wixal retains a license to maintain one backup copy of your User Content indefinitely.

You represent and warrant that you are the owner of all User Content and have all legal right and authority to grant Wixal the licenses set forth above. You further represent and warrant that with respect to any User Content, all necessary licenses, permissions, releases and consents (including, without limitation, copyright and trademark licenses, audio rights, or privacy/publicity releases for User Content depicting people, products, businesses, or other content) have been obtained by you. In addition, you represent and warrant that no User Content infringes the intellectual property rights, moral rights, or other property rights of any third party or violates any applicable law. Wixal does not pre-screen User Content, but reserves the right to remove or delete User Content that violates these Terms.

3. Wixal’s Intellectual Property

Excluding any User Content that you may provide, you acknowledge that all materials on Wixal’s website and Services, including our branding, trade dress, trade names, logos, design, text, search results, graphics, images, pictures, page headers, custom graphics, icons, scripts, sound files and other files, and the selection and arrangement and compilation of information thereof (collectively “Materials”), are proprietary property of Wixal, and are protected by U.S. and international intellectual property laws, including copyright and trademark laws. Our Materials cannot be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any meta tags or any other “hidden text” utilizing “Wixal” or any other name, trademark or product name of Wixal without our permission. Neither these Terms (nor your access to Wixal’s website or other audiovisual works created or modified by Wixal) transfers to you or any third party any rights, title or interest in or to such intellectual property rights. Wixal reserves all rights not granted in these Terms. There are no implied licenses granted under these Terms.

4. Digital Millennium Copyright Act Compliance

If you are a copyright owner or an agent thereof and believe that any content used by Wixal infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail):

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;

Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail address;

A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

You may direct copyright infringement notifications to: Wixal Copyright Agent, Jum Mum, Inc., 1684 San Miguel Drive, Walnut Creek, California 94596, e-mail: josh@wixal.com, phone: (925) 683-1642. You acknowledge that if you fail to comply with all of the requirements of this section and under the applicable statute, your DMCA notice may not be valid.

If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your content, you may send a counter-notice containing the following information to the Copyright Agent:

Your physical or electronic signature;

Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;

A statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content; and

Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, Wixal may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Wixal’s sole discretion.

5. Your Sites and Your End Users

You may use Wixal’s Services to create or publish websites, presentations and other products or services (“Your Sites”), and Your Sites may have their own visitors and users (“End Users”). You understand and agree that Your Sites and your End Users are your responsibility, and that you are solely responsible for compliance with any laws or regulations related to Your Sites and your End Users. Wixal shall not be liable for, and shall not provide you with any legal advice concerning, Your Sites or your End Users.

Because we do not control User Content, you acknowledge and agree that we are not responsible for any of your content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with End Users and other third parties are solely between you and such parties. You agree that Wixal will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any End User or other third party, we are under no obligation to become involved.

6. Third-Party Services

Wixal’s Services are integrated with various third-party services, applications and sites (collectively, “Third Party Services”) that may make available to you their content, products and services, such as data storage or video hosting. We are providing or allowing access to these Third-Party Services to you only as a convenience, and their use does not imply affiliation, endorsement, or adoption by us of any Third-Party Services or any information contained therein. These Third-Party Services may have their own terms and policies, and your use of them will be governed by those terms and policies. Wixal does not control Third-Party Services, and we are not liable for Third-Party Services or for any transaction you may enter into with them. Your security when using Third Party Services is your responsibility. You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third-Party Services. Wixal is not liable to you for any such suspension, disabling or removal, including, without limitation, for any loss of profits, revenue, data, goodwill or other intangible losses you may experience as a result thereof.

7. Rules for Real Estate Professionals

If you are a real estate professional, you agree that you will not use any information about End Users that is transferred to you during your use of Wixal’s Services (e.g., contact information sent to you when an End User contacts you through Your Sites or listing page) for any reason except to provide those users with real estate services. You further agree never to use such information for any illegal or harmful purpose.

8. Release

You hereby release and forever discharge Wixal (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services (including any interactions with, or act or omission of, End Users, third parties or any Third-Party Services). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

9. Disclaimers

WIXAL’S SERVICES AND WEBSITE AT WWW.WIXAL.COM ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND WIXAL (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES OR WEBSITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES OR WEBSITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.

IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE DISCLAIMER, THE DISCLAIMER WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.

10. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WIXAL (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, WIXAL’S SERVICES OR WEBSITE, EVEN IF WIXAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, WIXAL’S SERVICES OR WEBSITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY U.S. DOLLARS (U.S. $50.00). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS.

IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.

11. Indemnification

To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Wixal and its officers, directors, employees, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including, but not limited to, attorney’s fees and costs) arising from (1) your use of and access to Wixal’s Services; (2) your violation of any of the Terms herein; (3) your violation of any third party right, including, without limitation, any copyright, trademark, property, or privacy/publicity right; or (4) any claim that your User Content caused damage to an End User or other third party. This defense and indemnification obligation will survive the termination of any license granted herein and your use of Wixal’s Services.

12. Term and Termination

Subject to this section, these Terms will remain in full force and effect while you use Wixal’s Services. We may suspend or terminate your rights to use the Services at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms. Upon termination of your rights under these Terms, your right to access and use the Services will terminate immediately. You understand that any termination may involve deletion of your User Content from any of our databases. Wixal shall not have any liability whatsoever to you for any termination of your rights under these Terms, including for deletion of your User Content. The provisions contained in these Terms that by their sense and context are intended to survive the termination of these Terms shall survive the termination.

13. Governing Law

Any and all disputes, claims and controversies arising out of or in connection with your access to, and/or use of Wixal’s Services, and/or the provision of content, services, products and/or technology by Wixal shall be governed by and construed exclusively in accordance with the laws and decisions of the State of California applicable to contracts made, entered into and performed entirely therein, without giving effect to its conflict of laws provisions. By using Wixal’s Services, you consent to the exclusive jurisdiction and venue of the state and federal courts located in or serving Contra Costa County, California, in all disputes arising out of or relating to these Terms or use of Wixal’s Services. In any action to enforce these Terms, the prevailing party shall be entitled to costs and attorneys’ fees. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated or representative action. Class actions, class arbitrations, private attorney general actions and consolidation with other arbitrations are not allowed.

14. Miscellaneous

These Terms, together with Wixal’s Privacy Policy and any amendments and additional agreements you might enter with Wixal concerning its Services, shall constitute the entire agreement between you and Wixal, and shall supersede any prior terms you had with Wixal concerning its Services. In the event that any provision of these Terms is held to be unenforceable, such provision shall be replaced with an enforceable provision which most closely achieves the effect of the original provision, and the remaining terms of these Terms shall remain in full force and effect. Nothing in these terms creates any agency, employment, joint venture or partnership relationship between you and Wixal, or enables you to act on behalf of Wixal. Nothing contained in these terms shall be construed to limit the actions or remedies available to Wixal with respect to any prohibited activity or conduct. Non-enforcement of any provision of these Terms does not constitute consent or waiver, and Wixal reserves the right to enforce such provision at our sole discretion. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. These Terms are for the benefit of Wixal (and respective assignees), and each shall have the right to assert and enforce its provisions against you directly on its own behalf. These Terms, and your rights and obligations herein, are personal to you, are not intended to benefit any third party, and do not create any third-party beneficiaries. These Terms may not be assigned, subcontracted, delegated or otherwise transferred by you without Wixal’s prior written consent, and any attempted assignment, subcontract, delegation or transfer in violation of the foregoing will be null and void. Wixal may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.

15. Modifications

We reserve the right to change or modify these Terms, or any policy or guideline of its Services, at any time and in our sole discretion. Any changes or modification will be effective immediately upon posting of the revisions to Wixal’s Services or website. You waive any right you may have to receive specific notice of such changes or modifications. Your continued use of Wixal’s Services or website following the posting of changes or modifications will confirm your acceptance of such changes or modifications. Please review these terms and conditions periodically, and check the version date for changes. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

16. Electronic Communications

The communications between you and Wixal use electronic means, whether you use Wixal’s website or send us e-mails, or whether Wixal posts notices on our website or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Wixal in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Wixal provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.

17. Copyright/Trademark Information.

Copyright © 2015-2018 Wixal. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on Wixal’s website are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.