Wixi End User License Agreement and Terms of Service

Thank you for your interest in the Wixi application for your mobile device (the “App”) provided to you by Catalina Labs, Inc. (“Wixi”, “us”, or “we”), our Web sites at wixi.ai and wixi.expert (the “Sites”), as well as all related web sites, networks, downloadable software, and other services provided by us, or on which a link to this End User License Agreement and Terms of Service (this “EULA” or “Agreement”) is displayed, (unless separate terms are provided) (collectively, together with the App and Sites, our “Service”). This EULA, together with the Wixi Privacy Policy (which is incorporated herein by reference) and any other applicable policies and guidelines, as may be updated from time to time, govern your use of the Service. This EULA is a legally binding contract between you and Wixi regarding your use of the Service. You may request a copy of this EULA by emailing us at support@wixi.ai.

BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE APP OR THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS EULA.  IF YOU DO NOT AGREE, YOU MAY NOT USE THE SERVICE.

As provided in greater detail in this EULA (and without limiting the express language of the EULA below), you agree and acknowledge that the EULA includes, the following material terms:

  • the App is licensed, not sold to you, and you may use the Service only as set forth in this EULA;
  • your use of the Service may be subject to separate third party terms of service and fees, including without limitation your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
  • you consent to the collection and use of your personally identifiable information in accordance with Wixi’s Privacy Policy, and the access, configuration, and use of your network connected devices (“Devices”) at your direction in accordance with this Agreement;
  • access to certain features of the Service may require access to information about the location of your device, such as GPS coordinates;
  • the Service is provided “as is” without warranties of any kind and Wixi’s liability to you is limited;
  • Disputes arising hereunder will be resolved by binding arbitration, and BY ACCEPTING THIS EULA, YOU AND WIXI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Dispute Resolution Section below for the details regarding your agreement to arbitrate any disputes with Wixi;
  • the App may require access to the following services on your mobile device: UDID, MAC address, or other applicable device identifier, phone state and identity, audio and microphone access, and internet and data services.
  • if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple”, below.

 

  1. Eligibility. You must be at least eighteen (18) years of age to use the Service. By agreeing to this EULA, you represent and warrant to us: (i) that you are at least eighteen (18) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to this EULA and you agree to be bound by this EULA on behalf of such organization.
  2. Accounts and Registration. To access some features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your name, e-mail address, phone number or other contact information). You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and any password for Facebook, Google, or other third party login. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at support@wixi.ai.
  3. Payment. Access to certain premium features of the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. Wixi may change the fees for the Service or any feature of the Service, including by adding fees, on a going-forward basis at any time. Wixi will charge the payment method you specify at the time of purchase. You authorize Wixi and its designated payment processors to charge all sums as described in this EULA, for the Service you select, to that payment method. If you pay any fees with a credit card, Wixi and its designated payment processors may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
  4. License Grant. The App is licensed, not sold, to you for use only under the terms of this Agreement.  Wixi reserves all rights not expressly granted to you.  Subject to your complete and ongoing compliance with the terms and conditions of this EULA, Wixi hereby grants you a personal, limited, revocable, non-transferable license to use the App on a single compatible device that you own or control, solely for your own use. You may not modify, alter, reproduce, distribute or make the App available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the App. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or third party terms), nor attempt to disable or circumvent any security or other technological measure designed to protect the App or any content available through the App. If you breach these license restrictions and conditions, or otherwise exceed the scope of the licenses granted herein, you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights. The terms of this EULA will govern any updates provided to you by Wixi that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
  5. Authorization.
    1. You retain all of your rights in your Devices, but in order for Wixi to provide the Service we need certain permissions from you.  Accordingly, you hereby authorize Wixi to act as your agent to access, connect to and configure your Devices and communicate with third parties on your behalf, including providing any passwords and configuration details to third parties, in each case in accordance with the account settings and preferences you configure through the Service. You understand and acknowledge that in order to access and configure your Devices, you may be required to provide certain Device information and passwords that Wixi may store, and you agree to such access, storage, use, and transmission of such information and passwords.
    2. You agree that Wixi is not obligated to access, connect to or configure any device that Wixi determines is incompatible with the Service.
    3. YOU REPRESENT, WARRANT, AND COVENANT THAT (1) YOU EITHER ARE THE SOLE AND EXCLUSIVE OWNER OF ANY DEVICES THAT YOU CONNECT TO THE SERVICE, OR YOU HAVE ALL RIGHTS, LICENSES, CONSENTS AND RELEASES THAT ARE NECESSARY TO GRANT TO WIXI THE RIGHTS TO ACCESS AND CONFIGURE SUCH DEVICES ON YOUR BEHALF AS CONTEMPLATED UNDER THIS EULA, AND (2) THE  ACCESSING OF SUCH DEVICES OR WIXI’S EXERCISE OF THE RIGHTS GRANTED ABOVE RELATING TO  SUCH DEVICES (OR ANY DATA ASSOCIATED WITH SUCH DEVICE) WILL NOT INFRINGE, MISAPPROPRIATE OR VIOLATE A THIRD PARTY’S INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, CONSTITUTE OR RESULT IN THE VIOLATION OF ANY APPLICABLE LAW OR REGULATION, OR GIVE RISE TO ANY RIGHT OF PAYMENT OF ANY AMOUNTS TO ANY THIRD PARTY.
    4. Certain features of the Service may permit you to share certain settings such as your Wi-Fi settings with other users.  By sharing these settings, you grant Wixi the right to transfer such settings to that user.  Wixi does not monitor and will not be in any way responsible for any acts of a user to whom you grant such access.  You are solely responsible for monitoring the access you provide to your settings through Wixi.
  6. Location Based Services.  Some of the features of the Service enable Wixi to tailor your experience based on your location (“Location-based Services”).  In order to use certain Location-based Services, you must allow Wixi access to your localized position through your device, which Wixi may accomplish through a variety of means, including GPS location, GeoIP, or other available mechanisms.  If you choose to disable Location-based Services on your device or to the App, you will not be able to utilize certain features of the Service.  By authorizing Wixi to access your location, you agree and acknowledge that (i) location data we collect from you is directly relevant to your use of the Service and (ii) Wixi may, for so long as you allow Wixi to access such location data, provide Location-based Services related to your then-current location.  PLEASE NOTE THAT LOCATION DATA MAY NOT BE ACCURATE, AND WIXI DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION DATA AND LOCATION BASED SERVICES.
  7. User Content
    1. User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
    2. Limited License Grant to Wixi. By posting or publishing User Content, you grant Wixi a perpetual worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Wixi’s use of your User Content may be without any compensation paid to you.
    3. Limited License Grant to Other Users. By posting and sharing User Content with another user of the Service, you grant that user a non-exclusive license to access and use that User Content as permitted by this EULA and the functionality of the Service.
    4. User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
      1. you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use and to authorize Wixi and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 7 and in the manner contemplated by Wixi, the Service, and this EULA; and
      2. your User Content, and the use of your User Content as contemplated by this EULA, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Wixi to violate any law or regulation.
    5. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Wixi may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this EULA or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Wixi with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Wixi does not permit copyright-infringing activities on the Service.
  8. Digital Millennium Copyright Act
    1. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address: 555 Bryant Street, Suite 905, Palo Alto, CA 94301 E-mail: contact@catalina.io Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
      1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
      2. a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
      3. a description of the material that you claim is infringing and where it is located on the Service;
      4. your address, telephone number, and email address;
      5. a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
      6. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
    2. Repeat Infringers. In appropriate circumstances, Wixi will terminate the accounts of users we determine to be “repeat infringers." In general, we consider a repeat infringer to be a user who has been notified of infringing activity or has had User Content removed from the Service on more than three occasions.
  9. Third Party Services and Linked Websites. Wixi may provide tools through the Service that enable you to export information to third party services, including through features that allow you to link your account on Wixi with an account on the third party service, such as your account with your cable or internet provider. By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under our control, and we are not responsible for their content.
  10. Open Source and Third Party Software.  The Apps may include open source software or third party software.  Any such software is made available to you under the terms of the applicable licenses.
  11. Your Use of the Service.  Your rights to use the Service are expressly conditioned on the following:
    1. You agree and understand that the Service, including any content therein, contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right, or otherwise engage in the unauthorized use of any proprietary content, information or materials;
    2. Unless expressly permitted, you may not alter, modify, create derivative works of, sell, license or in any way exploit any part of the Service, and you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Service without prior written authorization;
    3. You agree not to bypass any security or other features of the Service designed to control the manner in which the Service is used, harvest or mine content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage;
    4. You agree not to perform any fraudulent activity, including impersonating any person or entity, or accessing any other Service account without permission;
    5. You agree not to decipher, reverse engineer, decompile or disassemble the Service, or the software used to provide the Service, in whole or in part, or authorize, direct, or cause a third party to do so;
    6. You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Service, or any portion thereof, unless and solely to the extent Wixi makes available the means for embedding any part of the Service;
    7. You agree not to access, tamper with, or use non-public areas of the Service, Wixi’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Wixi’s providers;
    8. You agree not to use any robot, spambot, spider, crawler, scraper or other automated means or interface not provided by us to access the Service or to extract data;
    9. You agree not to use the Service in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Wixi is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Service;
    10. You agree that your use of the App may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms;
    11. You agree not to introduce viruses, time-bombs, worms, cancelbots, trojan horses and/or other harmful code into the Service; and 
    12. You agree not to do any of the acts described in this Section 9, or to assist or permit any person in engaging in any of the acts described in this Section 9.
  12. Consent to Use of Data. You agree that Wixi may collect and use technical data and related information, including but not limited to UDID, passwords, state / status, network addresses, GPS location data, and other technical information about your Devices, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Service, and to track and anonymously report your activity inside of the Service, including for analytics purposes. If you are located outside of the United States, you expressly consent to the transfer and processing of your data, including personally identifiable data, outside your home jurisdiction.  Please see Wixi’s Privacy Policy, for more information regarding information Wixi collects, and how it uses and discloses that information.
  13. Feedback.  While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community.  If you choose to contribute by sending Wixi or our employees any ideas for products, services, features, modifications, enhancements, refinements, technologies, content offerings, promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, computer code, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms shall apply, so that future misunderstandings can be avoided.  Accordingly, by sending Feedback to Wixi, you agree that:
    1. Wixi has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
    2. Feedback is provided on a non-confidential basis, and Wixi is not under any obligation to keep any Feedback you send confidential or to refrain from using it in any way or to provide you with any attribution or compensation related to any actual or proposed use; and
    3. You irrevocably grant Wixi and its successors and assigns perpetual and unlimited permission to use, reproduce, modify, and distribute, display, and perform Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution or additional compensation of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services which incorporate or embody Feedback whether in whole or in part, and whether as provided or as modified.
  14. Ownership.  The Service, and the media and materials contained therein, including all intellectual property rights therein, are the sole and exclusive property of Wixi and its licensors.  Except for the limited license expressly granted by and to you under this EULA, no other rights, licenses, or immunities are granted or shall be deemed to be granted under this EULA, either expressly, or by implication, estoppel or otherwise.  All rights not expressly granted by Wixi hereunder are expressly reserved.
    1. Termination. The EULA is effective until terminated by you or Wixi, as provided herein. Your rights under this license will terminate automatically without notice from Wixi if you fail to comply with any term(s) of this EULA (including by violating any license restriction provided herein).  In addition, Wixi may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate this EULA at any time by closing your account and Services, uninstalling the App and ceasing use of the Service. Upon any termination of the EULA, you must immediately cease all use of the Service, and destroy all copies, full or partial, of the App. 
    2. Indemnity.  You agree to defend, indemnify, and hold Wixi, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected to your access, use, or misuse of the Service, or your violation of this EULA.
    3. NO WARRANTY. THE SERVICE AND ALL DATA, ANALYTICAL RESULTS OR CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. ANY DATA, ANALYTICAL RESULTS AND CONTENT AVAILABLE THROUGH THE SERVICE MAY BE LOST IN CONNECTION WITH USE OF THE SERVICE. WIXI MAKES NO WARRANTY AS TO THE ACCURACY OF ANY DATA, OR CONTENT PROVIDED THROUGH THE SERVICE, AND DISCLAIMS ANY ENHANCED ABILITY TO VERIFY THAT ANY SUCH DATA OR CONTENT ARE UP-TO-DATE. WIXI DOES NOT WARRANT THAT USE OF THE SERVICE WILL IMPROVE NETWORK OR DEVICE PERFORMANCE OR SECURITY, OR THAT THE SERVICE IS FREE OF BUGS, ERRORS, SECURITY RISKS, OR OTHER ISSUES.  WIXI DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS, DATA AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. WIXI DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY DATA, INCLUDING ANY RECOMMENDATIONS FOR IMPLEMENTATION, CONFIGURATION, TUNING, OR OTHER MODIFICATION OF DEVICES OR SETTINGS, OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING  WIXI OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, INCLUDING DAMAGE TO YOUR DEVICES OR NETWORKS, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY DATA, OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN DATA OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING ANY DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT DATA OR CONTENT. YOU UNDERSTAND THAT YOU ARE SOLELY RESPONSIBLE FOR THE ACTS OF ANY USERS OR OTHER THIRD PARTIES THAT YOU ALLOW TO ACCESS YOUR SETTINGS THROUGH WIXI, INCLUDING WITHOUT LIMITATION, IF SUCH USER TAKES OVER OR ATTEMPTS TO TAKE OVER YOUR HOME NETWORK OR ANY DEVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
    4. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WIXI, ITS SUPPLIERS OR LICENSORS, BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WIXI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WIXI’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO WIXI FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100USD. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OF CERTAIN TYPES OF DAMAGES OR LIABILITIES, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
    5. THIRD PARTY DISPUTES.  WIXI IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR ADVERTISER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, ADVERTISER, OR OTHER THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY OTHER USER OF THE WIXI SERVICE OR ANY THIRD PARTY THAT PROHIBITS YOUR USE OF THE SERVICE IN CONNECTION WITH SUCH THIRD PARTY’S PRODUCTS OR SERVICES, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE WIXI (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.  IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
    6. Dispute Resolution.  In the interest of resolving disputes between you and Wixi in the most expedient and cost effective manner, you and Wixi agree that any and all disputes arising in connection with this EULA shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this EULA, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND WIXI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
      1. Exceptions. Notwithstanding subsection (a), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
      2. Arbitrator. Any arbitration between you and Wixi will be settled under the Federal Arbitration Act and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Wixi.
      3. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). Wixi's address for Notice is: Catalina Labs, Inc., 555 Bryant Street, Suite 905, Palo Alto, CA 94301. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Wixi may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Wixi shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Wixi shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Wixi in settlement of the dispute prior to the arbitrator’s award.
      4. Fees. In the event that you commence arbitration in accordance with this EULA, Wixi will reimburse you for your payment of the filing fee, unless your claim is for greater than $5,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California provided that if the claim is for $5,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Wixi for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
    7. No Class Actions. YOU AND WIXI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Wixi agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
    8. Modifications. In the event that Wixi makes any future change to this arbitration provision (other than a change to the Wixi's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Wixi's address for Notice, in which case your account with Wixi shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
    9. Enforceability. If only Subsection (e) of this Section or the entirety of this Section is found to be unenforceable, then the entirety of this Section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in the “Governing Law” Section, below, shall govern any action arising out of or related to this EULA.
    10. Governing Law.  The laws of the State of California, excluding its conflicts of law rules, govern this license and your use of the Service. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action shall be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, and you hereby irrevocably submit to personal jurisdiction in such courts.
    11. International Use. The Service is controlled and operated from within the United States. Wixi makes no representation that the Service is appropriate or available in locations outside the United States. Those who choose to access the Service from other locations are responsible for compliance with applicable laws. International users must comply with all local rules regarding online conduct and acceptable content, including laws regulating the export of data form the United States or your country of residence.
    12. Modification of this EULA. We reserve the right, at our discretion, to modify this EULA on a going-forward basis at any time. In the case of material changes to this EULA, Wixi will make reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register for an account, through a notification on the Service, or other similar mechanism.  The modifications to the EULA will be effective upon the earlier of (i) your first use of the Service with actual notice of such change, or (ii) 30 days following Wixi’s publication of such change.  Your use of the Service following the date that any such change becomes effective constitutes your agreement to be bound by the modified EULA.  If you do not agree to the modified EULA, your sole and exclusive remedy is to terminate your account and you may no longer use the Service. Notwithstanding the foregoing, any disputes arising under this EULA will be resolved in accordance with the version of the EULA that was in effect at the time the dispute arose.
    13. General. This EULA, together with the Wixi Privacy Policy and any other applicable policies and guidelines, are the entire and exclusive understanding and agreement between you and Wixi regarding your use of the Service. Except as expressly permitted above, this EULA may be amended only by a written agreement signed by authorized representatives of all parties to this EULA. You may not assign or transfer this EULA or your rights under this EULA, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this EULA at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of this EULA, or any provision hereof, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this EULA is for convenience only and will not have any impact on the interpretation of any provision. If any part of this EULA is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of this EULA, any provision that by its nature or express terms should survive, will survive, including Section 1, 3, and Sections 5 through 29.
    14. Contacting Wixi.  You can contact Wixi, Inc. by email at support@wixi.ai, or by U.S. post at Catalina Labs, Inc. 555 Bryant Street, Suite 905, Palo Alto, CA 94301.
    15. Obtaining a Copy of this EULA. You may have this EULA mailed to you electronically by sending a letter to the address in Section 26 with your electronic mail address and a request for a copy of this EULA.
    16. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
    17. NOTICE REGARDING APPLE.  To the extent that you are using our mobile applications on an iOS device, you further acknowledge and agree to the terms of this Section 29.  You acknowledge that this EULA is between you and Wixi only, not with Apple, and Apple is not responsible for the Service and the content thereof.  Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.  In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service.  Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.  Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the mobile application infringe that third party’s intellectual property rights.  You agree to comply with any applicable third party terms when using the Service.  Apple and Apple’s subsidiaries are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of this EULA.  You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.