This Agreement (the “Agreement”) governs the Xtreme Locator Services as defined below. By using the Xtreme Locator Services, you agree, without limitation or qualification, to be bound by, and to comply with, this Agreement and any other posted guidelines. As used in this Agreement, the terms “we” and “our” shall refer to IQServices.com and Xtreme Locator.
1. Xtreme Locator Services.
1.1 Subject to the terms and conditions of this Agreement, IQServices.com will provide the Xtreme Locator Services. A description of the available Xtreme Locator packages is set forth in the relevant pages of the Xtreme Locator website at http://www.xtremelocator.com
1.2 You acknowledge that, in order to use the Xtreme Locator Services, you may need to comply with certain technical requirements. These requirements, if any, will be set forth in the system requirements at http://www.xtremelocator.com/system-requirements.html
1.3 Xtreme Locator reserves the right to modify the Xtreme Locator Services at any time. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT WE MAY CHANGE THE FEATURES AND TECHNICAL REQUIREMENTS OF XTREME LOCATOR SERVICES OR PARTICULAR SERVICES PACKAGES FROM TIME TO TIME. If you are dissatisfied with any modification to the Xtreme Locator Services, your sole remedy will be to terminate the Xtreme Locator Services in the manner described in this Agreement.
2. General Payment Terms
2.1 You agree to pay for the Xtreme Locator Services on time and in full.
2.2 You agree that the credit card information you provide corresponds to an account that you are authorized to use. We are permitted to charge your account in order to collect payment for the Xtreme Locator Services.
2.3 You are responsible, if applicable, for payment of all taxes and duties relating to the Xtreme Locator Services you have purchased, including, without limitation, all sales, use, transfer, privilege, and excise taxes and duties, whether national, international, state, or local, however designated.
2.4 If any payment is more than 14 days overdue, you may cease to have the privileges reserved for paying users of the Xtreme Locator Services for which you have registered and subscribed (although you will continue to be bound by your obligations under this Agreement).
3. Proprietary Rights.
You acknowledge and agree that certain content available through the Xtreme Locator Services, including, but not limited to, trademarks and service marks owned by Xtreme Locator and its parents, subsidiaries, affiliates, licensors, and service providers, is protected by copyright, trademark, patent, or other proprietary rights and laws, and may not be used in any manner other than as specified in this Agreement and in Xtreme Locator General Terms and Conditions. You agree not to modify, alter, or deface any of the trademarks, service marks, or other intellectual property made available through the Xtreme Locator Services. You agree not to hold yourself out as in any way sponsored by, affiliated with, or endorsed by Xtreme Locator or any of Xtreme Locator’s parents, subsidiaries, affiliates, licensors, or service providers. You agree not to adapt, translate, modify, decompile, disassemble, or reverse engineer the Xtreme Locator Services or any software or program in connection with the Xtreme Locator Services, or to export, directly or indirectly, the Xtreme Locator Services or any software or program in connection therewith, to any person or entity outside the United States in violation of applicable U.S. export laws.
4. Contract, Term and Renewal of Subscription.
4.1 Subscribing to our services initiates a contract between IQServices.com and the person or company named on the credit card account or checking account.
4.2 The Term of this Agreement shall last through the period of your Subscription and during any renewal periods for your Subscription, unless this Agreement is terminated earlier pursuant to the terms and conditions of this Agreement.
4.3 Unless otherwise stated herein, your Subscription for a specified time period will renew automatically for the same time period at the then-current price for the Xtreme Locator Services. If, for example, your Subscription is for one month, your Subscription will automatically renew for additional one-month terms.
4.4 All provisions of this Agreement, which, by their nature, impose continuing obligations, shall survive termination of this Agreement.
5. Termination of Services.
5.1 We may terminate the Xtreme Locator Services and this Agreement at any time under the following circumstances: (i) if you fail to make a payment when due; (ii) if you violate this Agreement or any rules or guidelines posted on the web pages associated with the Xtreme Locator Services for which you are registering; (iii) if Xtreme Locator determines in its sole discretion that any Content, your Web Site or any Domain Name violates this Agreement, the Xtreme Locator General Terms and Conditions, the Registrar Terms and Conditions, or any rules or guidelines posted on the web pages associated with the Xtreme Locator Services for which you are registering; (iv) if Xtreme Locator determines in its sole discretion that any Content, your Web Site or any Domain Name violates any law, regulation or the rights of any third party; (v) if Xtreme Locator receives a notification, including a notification pursuant to the Digital Millennium Copyright Act, alleging that any Content or your Web Site violates the Copyright Act; or (vi) for any other reason in Xtreme Locator’s sole discretion.
5.2 you may terminate the Xtreme Locator Services and this Agreement at any time by one of the following methods:
a. By canceling service in our online billing system.
b. By electronic mail with proper credentials.
c. By written notice.
d. By speaking with an Xtreme Locator customer service agent.
5.3 In the event of any termination of the Xtreme Locator Services and this Agreement by us pursuant to Sections 8.1 (v) or (vi), or in the event of any termination by you pursuant to Section 8.2, you will be given a pro-rated credit for the number of unused months in your Subscription. Any Set-up fees and other one-time fees will not be included in calculating the credit described in this paragraph.
5.4 In the event of any notification or complaint pursuant to the Digital Millennium Copyright Act or any other law, Xtreme Locator shall be under no obligation to obtain any counter notification or response from you before termination.
6. Representations and Warranties.
You make the following representations and warranties:
6.1 That you are 18 years of age or older.
6.2 To the extent that you are a corporation, you represent and warrant that you (i) are duly organized and validly existing under the laws of your state of incorporation, (ii) have full corporate power and authority to execute, enter into, and deliver this Agreement, and (iii) have full corporate power and authority to carry out your obligations hereunder.
6.3 That the information you provide to Xtreme Locator when registering for the Xtreme Locator Services is true, complete, and accurate and that you will immediately update such information should it become out of date.
6.4 That, in connection with the Xtreme Locator Services, you will comply with all applicable laws and regulations.
6.5 That Content, your Web Site and any Domain Name (i) complies with all applicable laws and regulations, (ii) does and will not violate, infringe, or dilute the patent, copyright, literary, privacy, publicity, trademark, service mark, trade secret or any other personal or property right of any person, and (iii) does not and will not violate any legal rights of any person or entity.
6.6 That your use of the Xtreme Locator Services will not violate any contractual commitment of yours.
Xtreme Locator reserves the right to modify the Xtreme Locator Services from time to time, for any reason, and without notice, including the right to terminate the Xtreme Locator Services. Xtreme Locator reserves the right to modify this Agreement from time to time, without notice. Please review the posted Agreement periodically so you will be apprised of any changes.
8. Disclaimer of Warranties.
THE XTREME LOCATOR SERVICES ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES ARE HEREBY DISCLAIMED. NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED IN CONNECTION WITH THE XTREME LOCATOR SERVICES ARE INTENDED TO EXPRESS OR IMPLY ANY WARRANTY OF ANY NATURE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, XTREME LOCATOR DISCLAIMS ALL EXPRESS, IMPLIED, AND/OR STATUTORY WARRANTIES REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE XTREME LOCATOR SERVICES, AS WELL AS ANY WARRANTIES THAT THE XTREME LOCATOR SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR FREE. XTREME LOCATOR SHALL NOT BE RESPONSIBLE IN ANY WAY FOR ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF THE CONTENT OR YOUR WEB SITE. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.
9. Limitation of Liability.
XTREME LOCATOR SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES (EVEN IF XTREME LOCATOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT SHALL XTREME LOCATOR BE LIABLE TO YOU FOR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE RELEVANT XTREME LOCATOR SERVICES DURING THE THREE MONTHS PRECEDING ANY INCIDENT THAT IS THE SUBJECT OF COMPLAINT OR ANY TERMINATION. THESE LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE XTREME LOCATOR SERVICES, FROM RELIANCE ON THE XTREME LOCATOR SERVICES, FROM INABILITY TO USE THE XTREME LOCATOR SERVICES, FROM LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF THE CONTENT OR YOUR WEB SITE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE XTREME LOCATOR SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THESE LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS TO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, the foregoing limitation may not apply to you.
10. Indemnity and Release.
You agree to indemnify Xtreme Locator and its parents, subsidiaries, affiliates, officers, and employees and hold them harmless from any and all claims and expenses, including attorney’s fees, arising from: (a) the Content, your Web Site or any Domain Name, (b) your use or misuse of the Xtreme Locator Services, (c) any alleged violation of this Agreement, the Xtreme Locator General Terms and Conditions, any rules or guidelines posted on the web pages associated with the Xtreme Locator Services for which you are registering or the rights of others or any law or regulation; or (d) from any person’s use of any account or password you maintain with any portion of the Xtreme Locator, regardless of whether such use is authorized by you.
11. Arbitration, Governing Law and Forum for Disputes.
11.1 All legal issues arising from or related to the use or misuse of the Xtreme Locator Services shall be construed in accordance with, and all questions with respect thereto shall be determined by, the laws of the State of Michigan applicable to contracts entered into and wholly to be performed within said state. Any controversy or claim arising out of or relating to this Agreement or any user’s use or misuse of the Xtreme Locator Services shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Michigan, and judgment on the arbitration award may be entered into in any state or federal court in Michigan having jurisdiction thereof. Any party seeking temporary or preliminary injunctive relief may do so in any state or federal court in Michigan having jurisdiction thereof. Except as set forth above, the state and federal courts of Michigan shall be the exclusive forum and venue to resolve disputes arising out of or relating to this Agreement or any user’s use or misuse of the Xtreme Locator Services, and you hereby consent to personal jurisdiction and venue in any state or federal court in Michigan in connection with any controversy or claim arising or relating to this Agreement or your use or misuse of the Xtreme Locator Services.
12. Force Majeure.
In the event that Xtreme Locator is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunications equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss or fluctuations in heat, light, or air conditioning, then Xtreme Locator’s performance shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence.
13. No Resale, Assignment, or Sublicensing.
You agree not to resell, assign, sublicense, otherwise transfer, or delegate your rights or obligations under this Agreement without the prior express written authorization of Xtreme Locator.
14. Limitation of Actions.
YOU AGREE THAT, REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OR MISUSE OF THE XTREME LOCATOR SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE, OR WILL FOREVER BE BARRED.
15. Relationship of Parties.
Xtreme Locator and its users are independent contractors, and nothing herein shall be construed to create a partnership, joint venture, agency, or employment relationship. Neither party pursuant to this Agreement has authority to enter into agreements of any kind on behalf of the other, and neither party shall be considered the agent of the other.
16. Non-Waiver and Separability.
Xtreme Locator’s failure to exercise any right or provision of this Agreement shall not constitute a waiver of such right or provision. If a court or arbitrator of competent jurisdiction holds that any provision of this Agreement is invalid, the parties nevertheless agree that the court or arbitrator should endeavor to give effect to the parties’ intentions as reflected in the provision, and agree that the other provisions in this Agreement remain in full force and effect.
17. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns.
18. Entire Agreement.
This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter contained in these terms and conditions and merges all prior discussions between them, and neither of the parties shall be bound by any conditions, definitions, warranties, understandings or representations with respect to such subject matter other than as expressly provided herein.
19. Legal Notices.
All legal notices or communications pursuant to this Agreement shall be deemed delivered upon receipt by the party to whom such communication is directed, at the following addresses: (a) if to Xtreme Locator, such notices shall be addressed to IQServices.com, PO Box 581, Fenton, Michigan 48430 and (b) if to user, such notices shall be addressed to the electronic mail address provided by user upon registration. It shall be the user’s sole obligation to maintain a current electronic mail address in his or her registration information. In the event that the user fails to supply an accurate working electronic mail address or fails to update such information after changing electronic mail addresses, all notices to the user shall be deemed to have been received within one (1) day after transmission or attempted transmission to the address supplied by the user.