Términos y condiciones
Términos y condiciones
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This User Agreement is applicable to ORBEM NETWORKS LLC, d/b/a XAGGO.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER.
This XAGGO User Agreement (“Agreement”) describes the terms and conditions that apply to Your (“You”, “Your”, “Yourself” or “User”) use of services offered by ORBEM NETWORKS LLC., a Florida corporation (collectively “XAGGO”). XAGGO provides a technology platform that allows Your payee (“Payee”) who provides You goods or services, such as utilities and telecommunications services, (such services by the Payee to You are referred to here as “Payee Services”) to electronically receive payment due from You for Payee Services provided to You (collectively, “Amount(s) Due”). You are a User (as defined below).
The Amount Due and the associated Payee Services are governed by the contract between You and the Payee. We provide services, which may include, but are not limited to the following: a platform for processing online and mobile transactions, reminders, transaction history, currency conversion, customer service and other ancillary services (the “XAGGO Service(s)”) as described more fully below in Section 3. We do not, however, provide any Payee Services to You; and we are not responsible in any way for Payee Services.
XAGGO exclusively serves as an Agent of Your Payee, and has been engaged by Your Payee to receive payments from You on behalf of the Payee. XAGGO is not Your agent and does not provide remittance or money transmission services on Your behalf. Instead, as described in more detail elsewhere in this Agreement, Your payment to Your Payee is deemed paid upon receipt by XAGGO.
By using the Services, providing Your information to XAGGO, or authorizing payment(s) described below, You agree to be bound by: (i) this Agreement, and (ii) XAGGO’s Privacy Policy available at: http://www.XAGGO.com/privacy-policy/ (collectively, “Terms”).
You should read through all of the Terms carefully. The Terms constitute a legally binding agreement between You and XAGGO.
The terms of this Agreement are effective as of the date that You use the Services (the “Effective Date”). If You use the Services on behalf of a business, You represent and warrant that You can enter into this Agreement with XAGGO on behalf of that business, that You accept the terms and conditions contained herein on behalf of that business, and that You have received a copy of the Agreement. You acknowledge and agree that XAGGO shall not be obligated to receive any payment requested by You if You do not provide us with requested information (including identity verification information as set forth in Section 6 hereof) or accurate and correct information of any kind or if Your Payment Method fails to deliver funds to XAGGO. You should notify XAGGO immediately if you become aware that You have made a mistake when making a payment to a Payee.
3.1. XAGGO Services for Payees.
XAGGO provides services to utilities, telecommunications services, and other legal entities (“Payees”) who wish to engage XAGGO as their Agent for accepting payments from Users.
You acknowledge that XAGGO acts as the Payee’s limited agent for the limited purpose of receiving payments in connection with the Participating Payee Services. When a User pays the applicable Payee through XAGGO’s Services, the User’s debt to the Participating Payee will be immediately extinguished; and, the Payee shall have no recourse against You if You made Your payment to XAGGO in XAGGO’s capacity as agent for the Payee and Your payment has not been rescinded by You, reversed, rejected, declined for insufficient funds (NSF) or charged back. In the event that Your payment has been rescinded by You, reversed, rejected, declined for insufficient funds (NSF) or charged back, Your payment liability to the Payee may remain outstanding and unpaid and may be subject to penalties, late fees, interest charges, and other negative action imposed by the Payee.
You will be sent a confirmation acknowledging the processing of Your payment.
As part of the XAGGO Services, XAGGO enables Users to pay Amounts Due to Payees using debit cards, ACH from Users’ bank accounts, and other payment methods that XAGGO may offer from time to time (“Payment Methods”) through the XAGGO websites (including, without limitation, www.XAGGO.com, any other website operated by XAGGO, and any subdomain of any such websites), the XAGGO mobile application, and/or other channels that XAGGO may offer from time to time. XAGGO will provide the XAGGO Services in conjunction with third-parties, including additional representatives of the Payees, who have contracted with XAGGO to make the XAGGO Services available to Payors.
You acknowledge and agree that, as it relates to Amounts Due: (i) Your payment is for a transaction between You and a Payee and not with XAGGO or any of XAGGO’s affiliates; and, (ii) in any given transaction, XAGGO is a third-party payment facilitator operating solely on behalf of Your Payee. For information regarding the XAGGO Fees, as defined below, please see Section 4. Refund requests related to Amounts Due should be directed to Your Payee.
3.3. Availability of Services.
You acknowledge that, if Your access to the Services is contingent upon an agreement between XAGGO and a Payee, then the applicable Payee may limit or terminate Your access to Services; and, if XAGGO’s agreement with such Payee is terminated, XAGGO may immediately terminate Your ability to use the Services and Your access to Your Account. XAGGO may terminate Your ability to use the Services for any or no reason.
3.4. Modification of Services.
You acknowledge that XAGGO has the right to change the content or technical specifications of any aspect of the Services at any time at XAGGO’s sole discretion. You acknowledge that such modifications may result in Your being unable to access the Services.
4.1. XAGGO Fees. XAGGO may charge You a fee to use the Services and XAGGO will disclose the fee to You prior to processing Your payment (“XAGGO Fee(s)”). However, XAGGO will collect, but not take title to, the XAGGO Fee unless and until the XAGGO Fee is authorized by the Payee, which has engaged XAGGO to receive its Payment from you. XAGGO Fees are not surcharges. XAGGO reserves the right to modify its XAGGO Fees at any time, provided that no modification will apply retroactively, and subject only to the authorization of Payee. If You have scheduled automatic payments (“Autopay”) and the associated XAGGO Fee amount is changed, You will be directly or indirectly notified of this change in advance.
4.2. Refunds. Refund requests related to the Payee Services should be directed to the Payee.
4.3. Processing Errors. If there is an error in the processing of Your transactions, You authorize XAGGO to debit or credit Your Payment Method to resolve such error.
You represent and warrant that You have the legal right and authority to utilize Your Payment Methods and authorize XAGGO to debit such Payment Methods in accordance with this Agreement.
You hereby authorize XAGGO to store Your Payment Method Instrument details or credentials where You have created an Account with XAGGO.
If you have enrolled in Autopay, you authorize XAGGO to charge your designated Payment Method on Your behalf and you further agree to pay all XAGGO Fees applicable at the time of Payment submission.
You hereby authorize debits to Your Payment Methods, in the amounts You authorize from time to time, which may include XAGGO Fees, Amounts Due, and other disclosed charges. You also authorize the crediting or debiting of Your Payment Method by XAGGO for any chargebacks, refunds, or adjustments made through the Services.
6.1. Representations and Warranties By You and/or Related To Your Information. In order to use and continue to use the Service, You represent and warrant that: (i) upon request, You will provide information and/or documents about Yourself that is true, accurate, current, and complete; (ii) where applicable, advise XAGGO of updates to Your information to keep it true, accurate, current and complete; and (iii) You are at least eighteen (18) years old. You acknowledge that XAGGO is relying on Your representations as a condition of providing You with the Services. If You provide information that is untrue, inaccurate, not current or incomplete, or if XAGGO has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, XAGGO, without limiting any other remedies, reserves the right to suspend or terminate Your access to the Service. You may not and agree not to use the Service for any illegal purpose or in any manner inconsistent with this Agreement. You acknowledge that if required by applicable law, XAGGO may hold any funds that You submitted through the Services.
6.2. Privacy Policy. You understand and agree that any information You provide to XAGGO (including Your personal and financial information) is subject to XAGGO’s Privacy Policy, available at: www.XAGGO.com/privacy-policy/. By agreeing to this Agreement, You hereby agree to such Privacy Policy, which may be updated from time to time. If XAGGO decides to change its Privacy Policy, it will post those changes on its Website.
6.3. Personal Data. You acknowledge that when you download, install or use the Mobile Device Software, XAGGO may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Mobile Device Software (which is included in the definition of User Data). You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Mobile Device Software or certain of its features or functionality. All information XAGGO collects through or in connection with this Mobile Device Software and your use thereof is subject to XAGGO’s Privacy Policy, which may be updated from time to time without notice. By downloading, installing, using, and providing information to or through this Mobile Device Software, you consent to all use and actions taken by us with respect to your information pursuant to the Privacy Policy. You also consent to any transfer, sale, assignment, conveyance or license by XAGGO of your User Data.
6.4. Ownership and Use of Data All ownership rights in and to the Mobile Device Software shall remain exclusively with XAGGO and its licensors, as applicable. Access to the Services is provided to you only to allow you to exercise your rights under this Agreement, and no implied license or right not expressly set forth in this Agreement is granted to you.
(a) User Data. In connection with the Mobile Device Software, XAGGO may collect and maintain User Data provided by you. You shall own all User Data. XAGGO shall maintain all personal identifiable aspects of all User Data as confidential pursuant to the Privacy Policy. All third parties authorized by XAGGO which may have access to the User Data shall be under obligations of confidentiality to maintain the User Data as confidential pursuant to the Privacy Policy. You agree to and do hereby grant to XAGGO the irrevocable, perpetual, transferrable right to use, disclose, commercialize, assign, convey, sell, lease, license or transfer any Deidentified User Data.
(b) XAGGO Data. All XAGGO Data is the sole property of XAGGO. XAGGO has the right to use, collect, store, create, aggregate, mine, analyze, modify, commercialize, assign, convey, sell, lease, license or transfer XAGGO Data in any form, for any purpose and in any manner. Any XAGGO Data provided to you shall be subject to limitations and restrictions imposed by XAGGO’s Privacy Policy and other commercial agreements to which XAGGO may be a party.
6.5. Identity Verification and Third-Party Permissions. You acknowledge and agree that XAGGO may make access to and use of any or all of its Services subject to certain conditions or eligibility requirements, such as completing an identity verification process, and that XAGGO may, at any time, as a condition of using the Services and in accordance with our Privacy Policy, ask You for information that will allow XAGGO to reasonably identify You, require You to take steps to confirm the accuracy and/or completeness of information You have provided to us, and/or verify Your information against third-party databases or through other means and/or as may be required to perform required screening, monitoring, and investigation of Your use of the Services, and in order to comply with applicable laws.
Information we may require from You may include Your name, address, date of birth, government identification number, taxpayer identification number, mobile phone number, home phone number, email address, and other information that will allow XAGGO to identify You. We may require You to provide documentation, which may include Your passport, driver’s license, or other government issued photo identification document. We may also contact You if we have additional questions. As a condition of Your use of the Services, You agree to such contacts and agree to provide us with true, accurate and correct information and to otherwise take steps to confirm Your identity and Your ownership of Your email address, mobile phone number, or Payment Method(s).
You expressly authorize XAGGO to screen You against third party databases or other sources and request reports from service providers and any online marketplace through which You access XAGGO’s Services; and You consent to the disclosure of Your information from them to XAGGO and from XAGGO to third-party verification service(s) providers, third-party processors, our banks, Payment Methods, government agencies, and other third parties for identity verification purposes, to meet anti-money laundering, anti-terrorist financing, transaction monitoring, and suspicious activity reporting requirements, or as otherwise required by law. You acknowledge and agree that we may collect information concerning the location of the device You use to access the Services and You authorize XAGGO to use such information to assess Your location and/or to conduct identity verification and/or transaction monitoring with respect to You. Any third party to which Your information is transmitted will be bound to maintain Your confidentiality and may not use the information supplied for any unauthorized purpose other than to verify Your identity, meet our legal, regulatory, risk requirements, provide the Services, or as otherwise described in these Terms or in the Privacy Policy (Section 6.2, above).
6.6. Email Communications. By using XAGGO’s Services, You consent to receive emails from XAGGO. You have the right to opt-out of the receipt of electronic marketing mail from XAGGO (as described in the Privacy Policy) at any time. However, to provide the Services, XAGGO will continue to send You emails regarding Your Account and Your use of the Services.
6.7. Text messaging Communications. If you provide us your mobile phone number, you agree that we may contact you at that number using autodialed or prerecorded calls or text messages to: (i) service your Xaggo Account, (ii) investigate or prevent fraud, or (iii) collect a debt. We will not use autodialed or prerecorded calls or texts to contact you for marketing purposes unless we receive your prior express written consent. We may share your mobile phone number with service providers with whom we contract to assist us with the activities listed above, but we will not share your mobile phone number with third parties for their own purposes without your consent. You do not have to agree to receive autodialed or prerecorded calls or texts to your mobile phone number in order to use and enjoy Xaggo. Please click here for Customer Service to decline receiving autodialed or prerecorded calls or texts to your mobile phone number. Standard telephone minute and text charges may apply. Our Customer Service team may contact you from time to time to verify transactions and ID verifications to assure your account is verified.
You agree and acknowledge that upon Your request, for payments You believe were improperly processed, XAGGO, in its sole discretion, may cancel a payment made through the Services at any time. However, the responsibility to resolve a payment dispute between You and Payee rests with You and the Payee. As a Payor, You have certain rights to dispute a payment made by You, such as where You do not recognize the transaction, where You claim fraud by the Payee or that the Payee failed to provide services to You as described. Those rights exist between You and the provider of the Payment Method. The process by which You exercise those rights are governed by the Payment Method, not XAGGO.
You may be asked to create an account with XAGGO to access the Services (“Account”), which allows us to remember You, store certain identifying information (such as a password, Your email address, or Your mobile phone number, and other information related to You or Your Payment Method details credentials to allow us to provide the Services. In that case, You will create a password when completing the Account creation process. You are solely responsible for maintaining the confidentiality of Your password, restricting access to Your Account, and are fully responsible for all activities occurring on Your Account. You agree to notify XAGGO immediately if You notice unauthorized use of Your password, unauthorized access to Your Account, unauthorized access to Your information, or any other breach of security. You agree that XAGGO is not liable for any damages or loss arising from Your failure to comply with this section. Your Account is not a bank account, credit account, prepaid account savings account or transaction account, such as a demand deposit account; and You are not able to make withdrawals from the Account. Either You or XAGGO may close Your access to the Services and/or Account at any time. You may close Your Account by sending an e-mail to customerservice@XAGGO.com to: (i) request deactivation of Your Account; (ii) access to the Services; (iii) and/or cancel any future AutoPay.
If we are not able to provide a refund to, or return funds to, the Payment Method You used to make a payment, and those funds are deemed abandoned as set forth in any applicable unclaimed property laws, we send such funds to the appropriate state or jurisdiction.
10.1. Your Liability. You shall be liable to XAGGO, its parent companies and subsidiaries, and the directors, officers, employees, and agents of each (“XAGGO Parties”) for any and all Claims (as defined below) arising out of or in connection with (i) Your misuse of the Payee Services, XAGGO Services, or Website; (ii) any breach (or, as to defense obligations only, any alleged breach) of Your obligations in this Agreement or any breach of Your representations, warranties, or obligations set forth in this Agreement; or (iii) Your negligence, fraud, misrepresentation, willful misconduct, violation of applicable law, violation of card network rules, or infringement of the rights of any person or entity.
10.2. XAGGO Liability. XAGGO shall be liable to You, if any, for any and all Claims (as defined below) arising out of or in connection with XAGGO’s gross negligence, fraud, misrepresentation, willful misconduct, violation of applicable law, or infringement of the rights of any person or entity.
10.3. Indemnification Process. The party seeking indemnification pursuant to this Section 10 (the “Indemnitee”) shall: (a) promptly notify the other party (the “Indemnitor”), in accordance with Section 13.3, of the Claim for which indemnification is sought, but in no event longer than five (5) business days of the Indemnitee’s knowledge of the Claim: (b) make all reasonable efforts to provide Indemnitor with all information and material in Indemnitee’s possession regarding the Claim; (c) furnish to Indemnitor such assistance as Indemnitor may reasonably request in connection with the investigation, settlement and defense of the Claim; and (d) grant Indemnitor sole control over the defense and settlement of the Claim. Within ten (10) days of Indemnitor’s receipt of the notice of the Claim or demand, Indemnitor shall notify the Indemnitee as to whether Indemnitor is assuming the entire control (subject to this Section) of the defense, compromise or settlement of the matter, including the counsel that Indemnitor has selected. The Indemnitor shall institute and maintain any such defense diligently and reasonably and shall keep the Indemnitee fully advised as to the status thereof. Further, Indemnitor shall not dispose of or settle any such Claim in Indemnitee’s name or in any manner which may adversely affect Indemnitee’s rights or interests (which includes, without limitation, any settlement that imposes pecuniary or other liability or an admission of fault or guilt on the Indemnitee or would require the Indemnitee to be bound by an injunction of any kind) without Indemnitee’s prior written consent, which consent shall not be unreasonably withheld or delayed. Indemnitee shall not be liable hereunder for any settlement entered into without its prior written consent (which consent shall not be unreasonably withheld or delayed).
10.4. Definition of “Claim.” “Claim” means an action, allegation, assessment, cause of action, cease and desist letter, charge, citation, claim, demand, directive, fine, lawsuit or other litigation or proceeding, or notice issued or submitted by, from or on behalf of a third party, including any governmental agency, and all resulting judgments, bona fide settlements, penalties, damages (including consequential, indirect, special, incidental or punitive damages), losses, liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees, expenses and costs) incurred in connection therewith.
11.1. Disclaimers. EXCEPT FOR ANY EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT: (i) THE SERVICES, WEBSITES, AND ALL CONTENT, SOFTWARE, MATERIALS AND OTHER INFORMATION PROVIDED BY XAGGO OR OTHERWISE ACCESSIBLE TO YOU IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND (ii) XAGGO AND ITS RESPECTIVE AFFILIATES AND SUPPLIERS MAKE NO WARRANTY OF ANY KIND (AND DISCLAIM ALL WARRANTIES OF ANY KIND) WITH RESPECT TO THE FOREGOING, WHETHER EXPRESS, STATUTORY OR IMPLIED, AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, XAGGO MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. XAGGO MAKES NO WARRANTY REGARDING THE QUALITY OF THE PAYMENT SERVICES.
11.2. The Internet. XAGGO and its suppliers make no warranties regarding the quality, reliability, timeliness or security of the Internet and other globally linked computer networks, or the web sites established thereon including the Website, will be uninterrupted or error free.
11.3. Limitation of Liability.
11.3.1. YOU AGREE THAT XAGGO SHALL NOT BE LIABLE FOR: ANY FAILURES CAUSED BY ANY PERSON OR ENTITY OTHER THAN XAGGO THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF A PAYMENT, OR THE SERVICES.
11.3.2. EXCEPT WHERE YOU COMMIT FRAUD OR MISUSE THE SERVICES AND EXCEPT WHERE THE CLAIM IS SUBJECT TO INDEMNIFICATION UNDER SECTION 10 OF THIS AGREEMENT: (i) IN NO EVENT WILL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES OR SUPPLIERS, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR LOST PROFITS OR FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE PARTY OTHERWISE LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); AND (ii) IN NO EVENT WILL XAGGO’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE GREATER OF: (a) THE AMOUNT OF PAYMENTS IN DISPUTE, OR (b) $100 USD. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated in this paragraph and that these limitations are an essential basis of the bargain between the parties.
12.1. ARBITRATION: Please read this Section carefully. It affects Your rights and will impact how claims You and XAGGO may have against each other are resolved.
12.2. Complaint Process. If You wish to make a complaint about the Services, You can make a complaint by sending an e-mail to customerservice@XAGGO.com. Most of Your concerns can be resolved through XAGGO’s customer service department. XAGGO’s goal is to learn about and try to resolve the underlying causes of the concern. To that end, the parties shall cooperate and attempt in good faith to resolve any potential dispute promptly by discussions between persons who have authority to resolve the potential dispute. If the parties are unable to resolve the potential dispute amicably at that level, You shall report the potential dispute to XAGGO’s legal team at legal@XAGGO.com. Any of Your disputes related to billing or XAGGO Fees must be raised within ninety (90) days of the relevant transaction or they are deemed permanently waived by You.
12.3. AGREEMENT TO ARBITRATE. ANY DISPUTE ARISING BETWEEN YOU AND XAGGO THAT CANNOT BE RESOLVED INFORMALLY AS DESCRIBED IN SECTION 12.2 (INCLUDING WITHOUT LIMITATION ANY CONTROVERSY OR CLAIM ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE ALLEGED BREACH THEREOF) SHALL BE FINALLY RESOLVED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (THE “AAA”) UNDER ITS COMMERCIAL ARBITRATION RULES, INCLUDING THE AAA’S SUPPLEMENTAL PROCEDURES FOR CONSUMER-RELATED DISPUTES, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THE ARBITRATION WILL BE CONDUCTED IN THE ENGLISH LANGUAGE, BEFORE A SINGLE ARBITRATOR, IN THE CITY OF MIAMI, FLORIDA. THE ARBITRATOR SHALL DECIDE THE DISPUTE IN ACCORDANCE WITH THE SUBSTANTIVE LAW OF THE STATE OF FLORIDA. COSTS OF AAA WILL BE SHARED EQUALLY BY THE PARTIES, EXCEPT THAT THE ARBITRATOR SHALL AWARD THE PREVAILING PARTY COSTS AND ATTORNEYS’ XAGGO FEES IN ANY ARBITRATION WHERE THE PREVAILING PARTY PREVAILS IN CONNECTION WITH CLAIMS THAT A PARTY FAILED TO TIMELY REMIT XAGGO FEES OR AMOUNTS DUE TO THE OTHER PARTY.
12.4. CLASS ACTION WAIVER AND JURY TRIAL WAIVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES AGREE THAT ANY PROCEEDING, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED REPRESENTATIVE ACTION. IF FOR ANY REASON A CLAIM OR DISPUTE PROCEEDS IN COURT RATHER THAN ARBITRATION, EACH PARTY KNOWINGLY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTER-CLAIM RELATING OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BETWEEN THE PARTIES. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES HEREBY AGREE THAT: (1) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (2) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
12.5. Applicable Law and Forum.
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to its conflict of laws principles and You agree, with respect to any court action permitted under this Agreement, to exclusive personal jurisdiction in the state and federal courts located in the State of Florida, County of Miami-Dade.
13.1. Amendments to this Agreement.
XAGGO may amend this Agreement, at any time with notice that XAGGO deems to be reasonable under the circumstances, by posting the revised version on XAGGO’s Website, or by email (each, an “Updated Agreement”). The Updated Agreement will be effective as of the time it is posted, but will not apply retroactively. Your continued access or use of the XAGGO Services will constitute Your acceptance of the Updated Agreement. If You disagree at any time with amendments made, You must contact XAGGO at: customerservice@XAGGO.com to cancel Your Services and Account, which will also terminate Your access to the Services. This Agreement may not otherwise be amended except by written agreement, signed by You and an authorized XAGGO representative.
13.2. Notices.
All notices and other communications under this Agreement must be in writing and may be made by means of email or a posting on, or update to the XAGGO Website. Notices to You will be delivered to the email address provided to XAGGO or as modified by You through notice to XAGGO or by posting on or update to the XAGGO Website. Notices to XAGGO can be made via email at legal@XAGGO.com.
13.4. E-Sign Consent.
XAGGO and its affiliates and third party service providers may need to provide You with certain communications, notices, agreements, billing statements, or disclosures in writing (“Communications”) regarding the Services. Your agreement to this E-sign Consent confirms Your ability and consent to receive Communications electronically from XAGGO, its affiliates, and its third party service providers, rather than in paper form, and to the use of electronic signatures in our relationship with You (“Consent”). If You choose not to agree to this Consent or You withdraw Your Consent, You may be restricted from using the Services.
13.4.1. Electronic Delivery of Communications and Use of Electronic Signatures.
Under this Consent, XAGGO may provide all Communications electronically by email, by text message, or by making them accessible via XAGGO Websites. Communications include, but are not limited to, (1) agreements and policies required to use the Services (e.g. this Consent, the XAGGO Privacy Policy, and this Agreement), (2) payment authorizations and transaction receipts or confirmations, (3) account statements and history, (4) and all federal and state tax statements and documents. We may also use electronic signatures and obtain them from You.
13.4.2. Withdrawal of Consent to Electronic Communications.
You may withdraw Your consent to receive electronic Communications at any time, by writing to XAGGO. However, withdrawal of Your consent to receive electronic Communications may result in termination of Your access to the Services. Any withdrawal of Your consent will be effective after a reasonable period of time for processing Your request.
13.4.3. Email Address.
It is Your responsibility to keep Your email address up-to-date and to notify XAGGO of any changes in Your email address. You understand and agree that if XAGGO sends You an email, but You do not receive it because Your primary email address on file is incorrect, out-of-date, blocked by Your service provider, or You are otherwise unable to receive emails, XAGGO will still be deemed to have provided the email to You.
13.4. Entirety and Severability.
This Agreement contains the entire understanding between You and XAGGO with respect to its subject matter, superseding all prior and contemporaneous representations, understandings, and any other oral or written agreements between the parties with respect to such subject matter. If any provision of this Agreement, or the application thereof, is found invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this Agreement will remain in full force.
13.5. Waiver.
The failure by a party to insist upon strict performance of any of the provisions contained in this Agreement shall in no way constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions. No waiver of any provision or of any breach of this Agreement shall be deemed a further or continuing waiver of such provision, breach, or any other provision of this Agreement.
13.6. Binding Upon Successors and Permitted Assigns.
This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. You may not assign this Agreement or any rights, obligations, or privileges under this Agreement without XAGGO’s prior written consent. XAGGO may assign its rights and obligations under this Agreement at any time without notice to You.
13.7. Force Majeure.
XAGGO will not be responsible for delays, errors, failures to perform, interruptions or disruptions in the Services or Websites resulting from any act, omission or condition beyond XAGGO’s reasonable control, whether or not foreseeable or identified, including without limitation acts of God, labor strikes, lockouts, riots, acts of war, governmental regulations, fire, power failure, earthquakes, severe weather, floods or other natural disasters, hackers, or the failure of Yours or any third party’s hardware, software or communications equipment or facilities.
If You are accessing the Services from a mobile device using an application (the “Application”), the following end-user license agreement (“EULA”) terms apply to You in addition to the above:
14.1. XAGGO grants You the right to use the Application only for Your personal use. You must comply with all applicable laws and third party agreements (for example, Your wireless data service agreement). The Application may not contain the same functionality as the Website. Deleting the Application does not deactivate or delete Your profile or Account with XAGGO; please see Section 8, which contains information about service cancellations.
14.2. XAGGO owns, or is the licensee to, all right, title and interest in and to its Application, including all rights under patent, copyright, trade secret, trademark, and any and all other proprietary rights, including all applications, renewals, extensions, and restorations thereof. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse-engineer, disassemble, or otherwise attempt to derive source code from any Application and You will not remove, obscure, or alter XAGGO’s copyright notice, trademarks or other proprietary rights notices affixed to, contained within, or accessed in conjunction with or by any Application.
14.3. Geographic Restrictions: The Mobile Device Software and access to XAGGO’s Hosted Software are provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Hosted Software outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Hosted Software from outside the United States, you are responsible for compliance with local laws.
14.4 Mobile Application Terms
14.4.1. License Grant
XAGGO, through the Mobile Device Software, provides the Services to you. Subject to your compliance with the terms of this Agreement, XAGGO grants you a personal, limited, terminable, non-exclusive, non-transferable license to:
(b) access and use on such Mobile Device the Services made available in or otherwise accessible through the Mobile Device Software, strictly in accordance with this Agreement.
(i) copy the Mobile Device Software;
(ii) modify, translate, adapt or otherwise create derivative works or improvements, of the Mobile Device Software;
(iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Mobile Device Software, the Hosted Software or any part thereof;
(iv) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Mobile Device Software;
(v) rent, lease, lend, sell, sublicense, assign, distribute, publish, publicly perform or display, transfer or otherwise make available the Mobile Device Software or any features or functionality of the Mobile Device Software, to any third party for any reason, including by making the Mobile Device Software available on a network where it is capable of being accessed by more than one device at any time;
(vi) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Mobile Device Software; or,
(vii) upload or introduce any virus or malware to the Hosted Software.
(b) You are responsible for keeping your account login credentials (user name and password) confidential and not sharing them with unauthorized users. If you disclose your login credentials to someone, you are responsible for any use, disclosure, additions, deletions and modifications of your User Data.
You acknowledge and agree that the Mobile Device Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Mobile Device Software under this Agreement or any other rights thereto other than to use the Mobile Device Software in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. XAGGO and its licensors and service providers reserve and shall retain each of their entire right, title and interest in and to the Mobile Device Software and Website. All rights not specifically granted in this Agreement are reserved by XAGGO. XAGGO shall own all rights in any functionality, features, modification or customization of the Mobile Device Software.
This Agreement constitutes the entire agreement between you and XAGGO with respect to the Services and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect thereto. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any
This User Agreement is applicable to ORBEM NETWORKS LLC, d/b/a XAGGO.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER.
1. About XAGGO.
This XAGGO User Agreement (“Agreement”) describes the terms and conditions that apply to Your (“You”, “Your”, “Yourself” or “User”) use of services offered by ORBEM NETWORKS LLC., a Florida corporation (collectively “XAGGO”). XAGGO provides a technology platform that allows Your payee (“Payee”) who provides You goods or services, such as utilities and telecommunications services, (such services by the Payee to You are referred to here as “Payee Services”) to electronically receive payment due from You for Payee Services provided to You (collectively, “Amount(s) Due”). You are a User (as defined below).
The Amount Due and the associated Payee Services are governed by the contract between You and the Payee. We provide services, which may include, but are not limited to the following: a platform for processing online and mobile transactions, reminders, transaction history, currency conversion, customer service and other ancillary services (the “XAGGO Service(s)”) as described more fully below in Section 3. We do not, however, provide any Payee Services to You; and we are not responsible in any way for Payee Services.
XAGGO exclusively serves as an Agent of Your Payee, and has been engaged by Your Payee to receive payments from You on behalf of the Payee. XAGGO is not Your agent and does not provide remittance or money transmission services on Your behalf. Instead, as described in more detail elsewhere in this Agreement, Your payment to Your Payee is deemed paid upon receipt by XAGGO.
2. Consent to Terms.
By using the Services, providing Your information to XAGGO, or authorizing payment(s) described below, You agree to be bound by: (i) this Agreement, and (ii) XAGGO’s Privacy Policy available at: http://www.XAGGO.com/privacy-policy/ (collectively, “Terms”).
You should read through all of the Terms carefully. The Terms constitute a legally binding agreement between You and XAGGO.
The terms of this Agreement are effective as of the date that You use the Services (the “Effective Date”). If You use the Services on behalf of a business, You represent and warrant that You can enter into this Agreement with XAGGO on behalf of that business, that You accept the terms and conditions contained herein on behalf of that business, and that You have received a copy of the Agreement. You acknowledge and agree that XAGGO shall not be obligated to receive any payment requested by You if You do not provide us with requested information (including identity verification information as set forth in Section 6 hereof) or accurate and correct information of any kind or if Your Payment Method fails to deliver funds to XAGGO. You should notify XAGGO immediately if you become aware that You have made a mistake when making a payment to a Payee.
3. The XAGGO Services.
3.1. XAGGO Services for Payees.
XAGGO provides services to utilities, telecommunications services, and other legal entities (“Payees”) who wish to engage XAGGO as their Agent for accepting payments from Users.
You acknowledge that XAGGO acts as the Payee’s limited agent for the limited purpose of receiving payments in connection with the Participating Payee Services. When a User pays the applicable Payee through XAGGO’s Services, the User’s debt to the Participating Payee will be immediately extinguished; and, the Payee shall have no recourse against You if You made Your payment to XAGGO in XAGGO’s capacity as agent for the Payee and Your payment has not been rescinded by You, reversed, rejected, declined for insufficient funds (NSF) or charged back. In the event that Your payment has been rescinded by You, reversed, rejected, declined for insufficient funds (NSF) or charged back, Your payment liability to the Payee may remain outstanding and unpaid and may be subject to penalties, late fees, interest charges, and other negative action imposed by the Payee.
You will be sent a confirmation acknowledging the processing of Your payment.
3.2 XAGGO’s Services for Users.
As part of the XAGGO Services, XAGGO enables Users to pay Amounts Due to Payees using debit cards, ACH from Users’ bank accounts, and other payment methods that XAGGO may offer from time to time (“Payment Methods”) through the XAGGO websites (including, without limitation, www.XAGGO.com, any other website operated by XAGGO, and any subdomain of any such websites), the XAGGO mobile application, and/or other channels that XAGGO may offer from time to time. XAGGO will provide the XAGGO Services in conjunction with third-parties, including additional representatives of the Payees, who have contracted with XAGGO to make the XAGGO Services available to Payors.
You acknowledge and agree that, as it relates to Amounts Due: (i) Your payment is for a transaction between You and a Payee and not with XAGGO or any of XAGGO’s affiliates; and, (ii) in any given transaction, XAGGO is a third-party payment facilitator operating solely on behalf of Your Payee. For information regarding the XAGGO Fees, as defined below, please see Section 4. Refund requests related to Amounts Due should be directed to Your Payee.
3.3. Availability of Services.
You acknowledge that, if Your access to the Services is contingent upon an agreement between XAGGO and a Payee, then the applicable Payee may limit or terminate Your access to Services; and, if XAGGO’s agreement with such Payee is terminated, XAGGO may immediately terminate Your ability to use the Services and Your access to Your Account. XAGGO may terminate Your ability to use the Services for any or no reason.
3.4. Modification of Services.
You acknowledge that XAGGO has the right to change the content or technical specifications of any aspect of the Services at any time at XAGGO’s sole discretion. You acknowledge that such modifications may result in Your being unable to access the Services.
4. XAGGO Fees and Refunds.
4.1. XAGGO Fees. XAGGO may charge You a fee to use the Services and XAGGO will disclose the fee to You prior to processing Your payment (“XAGGO Fee(s)”). However, XAGGO will collect, but not take title to, the XAGGO Fee unless and until the XAGGO Fee is authorized by the Payee, which has engaged XAGGO to receive its Payment from you. XAGGO Fees are not surcharges. XAGGO reserves the right to modify its XAGGO Fees at any time, provided that no modification will apply retroactively, and subject only to the authorization of Payee. If You have scheduled automatic payments (“Autopay”) and the associated XAGGO Fee amount is changed, You will be directly or indirectly notified of this change in advance.
4.2. Refunds. Refund requests related to the Payee Services should be directed to the Payee.
4.3. Processing Errors. If there is an error in the processing of Your transactions, You authorize XAGGO to debit or credit Your Payment Method to resolve such error.
5. Consent and Authorization to Use Payment Method.
You represent and warrant that You have the legal right and authority to utilize Your Payment Methods and authorize XAGGO to debit such Payment Methods in accordance with this Agreement.
You hereby authorize XAGGO to store Your Payment Method Instrument details or credentials where You have created an Account with XAGGO.
If you have enrolled in Autopay, you authorize XAGGO to charge your designated Payment Method on Your behalf and you further agree to pay all XAGGO Fees applicable at the time of Payment submission.
You hereby authorize debits to Your Payment Methods, in the amounts You authorize from time to time, which may include XAGGO Fees, Amounts Due, and other disclosed charges. You also authorize the crediting or debiting of Your Payment Method by XAGGO for any chargebacks, refunds, or adjustments made through the Services.
6. Your Representations and Warranties to XAGGO; Your Information; Privacy; Identity Verification and Third-Party Permissions.
6.1. Representations and Warranties By You and/or Related To Your Information. In order to use and continue to use the Service, You represent and warrant that: (i) upon request, You will provide information and/or documents about Yourself that is true, accurate, current, and complete; (ii) where applicable, advise XAGGO of updates to Your information to keep it true, accurate, current and complete; and (iii) You are at least eighteen (18) years old. You acknowledge that XAGGO is relying on Your representations as a condition of providing You with the Services. If You provide information that is untrue, inaccurate, not current or incomplete, or if XAGGO has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, XAGGO, without limiting any other remedies, reserves the right to suspend or terminate Your access to the Service. You may not and agree not to use the Service for any illegal purpose or in any manner inconsistent with this Agreement. You acknowledge that if required by applicable law, XAGGO may hold any funds that You submitted through the Services.
6.2. Privacy Policy. You understand and agree that any information You provide to XAGGO (including Your personal and financial information) is subject to XAGGO’s Privacy Policy, available at: www.XAGGO.com/privacy-policy/. By agreeing to this Agreement, You hereby agree to such Privacy Policy, which may be updated from time to time. If XAGGO decides to change its Privacy Policy, it will post those changes on its Website.
6.3. Personal Data. You acknowledge that when you download, install or use the Mobile Device Software, XAGGO may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Mobile Device Software (which is included in the definition of User Data). You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Mobile Device Software or certain of its features or functionality. All information XAGGO collects through or in connection with this Mobile Device Software and your use thereof is subject to XAGGO’s Privacy Policy, which may be updated from time to time without notice. By downloading, installing, using, and providing information to or through this Mobile Device Software, you consent to all use and actions taken by us with respect to your information pursuant to the Privacy Policy. You also consent to any transfer, sale, assignment, conveyance or license by XAGGO of your User Data.
6.4. Ownership and Use of Data
All ownership rights in and to the Mobile Device Software shall remain exclusively with XAGGO and its licensors, as applicable. Access to the Services is provided to you only to allow you to exercise your rights under this Agreement, and no implied license or right not expressly set forth in this Agreement is granted to you.
(a) User Data. In connection with the Mobile Device Software, XAGGO may collect and maintain User Data provided by you. You shall own all User Data. XAGGO shall maintain all personal identifiable aspects of all User Data as confidential pursuant to the Privacy Policy. All third parties authorized by XAGGO which may have access to the User Data shall be under obligations of confidentiality to maintain the User Data as confidential pursuant to the Privacy Policy. You agree to and do hereby grant to XAGGO the irrevocable, perpetual, transferrable right to use, disclose, commercialize, assign, convey, sell, lease, license or transfer any Deidentified User Data.
(b) XAGGO Data. All XAGGO Data is the sole property of XAGGO. XAGGO has the right to use, collect, store, create, aggregate, mine, analyze, modify, commercialize, assign, convey, sell, lease, license or transfer XAGGO Data in any form, for any purpose and in any manner. Any XAGGO Data provided to you shall be subject to limitations and restrictions imposed by XAGGO’s Privacy Policy and other commercial agreements to which XAGGO may be a party.
6.5. Email Communications. By using XAGGO’s Services, You consent to receive emails from XAGGO. You have the right to opt-out of the receipt of electronic marketing mail from XAGGO (as described in the Privacy Policy) at any time. However, to provide the Services, XAGGO will continue to send You emails regarding Your Account and Your use of the Services.
6.6 Text messaging Communications. If you provide us your mobile phone number, you agree that we may contact you at that number using autodialed or prerecorded calls or text messages to: (i) service your Xaggo Account, (ii) investigate or prevent fraud, or (iii) collect a debt. We will not use autodialed or prerecorded calls or texts to contact you for marketing purposes unless we receive your prior express written consent. We may share your mobile phone number with service providers with whom we contract to assist us with the activities listed above, but we will not share your mobile phone number with third parties for their own purposes without your consent. You do not have to agree to receive autodialed or prerecorded calls or texts to your mobile phone number in order to use and enjoy Xaggo. Please click here for Customer Service to decline receiving autodialed or prerecorded calls or texts to your mobile phone number. Standard telephone minute and text charges may apply. Our Customer Service team may contact you from time to time to verify transactions and ID verifications to assure your account is verified.
You agree and acknowledge that upon Your request, for payments You believe were improperly processed, XAGGO, in its sole discretion, may cancel a payment made through the Services at any time. However, the responsibility to resolve a payment dispute between You and Payee rests with You and the Payee. As a Payor, You have certain rights to dispute a payment made by You, such as where You do not recognize the transaction, where You claim fraud by the Payee or that the Payee failed to provide services to You as described. Those rights exist between You and the provider of the Payment Method. The process by which You exercise those rights are governed by the Payment Method, not XAGGO.
You may be asked to create an account with XAGGO to access the Services (“Account”), which allows us to remember You, store certain identifying information (such as a password, Your email address, or Your mobile phone number, and other information related to You or Your Payment Method details credentials to allow us to provide the Services. In that case, You will create a password when completing the Account creation process. You are solely responsible for maintaining the confidentiality of Your password, restricting access to Your Account, and are fully responsible for all activities occurring on Your Account. You agree to notify XAGGO immediately if You notice unauthorized use of Your password, unauthorized access to Your Account, unauthorized access to Your information, or any other breach of security. You agree that XAGGO is not liable for any damages or loss arising from Your failure to comply with this section. Your Account is not a bank account, credit account, prepaid account savings account or transaction account, such as a demand deposit account; and You are not able to make withdrawals from the Account. Either You or XAGGO may close Your access to the Services and/or Account at any time. You may close Your Account by sending an e-mail to customerservice@XAGGO.com to: (i) request deactivation of Your Account; (ii) access to the Services; (iii) and/or cancel any future AutoPay.
If we are not able to provide a refund to, or return funds to, the Payment Method You used to make a payment, and those funds are deemed abandoned as set forth in any applicable unclaimed property laws, we send such funds to the appropriate state or jurisdiction.
10. Liability and Indemnification.
10.1. Your Liability. You shall be liable to XAGGO, its parent companies and subsidiaries, and the directors, officers, employees, and agents of each (“XAGGO Parties”) for any and all Claims (as defined below) arising out of or in connection with (i) Your misuse of the Payee Services, XAGGO Services, or Website; (ii) any breach (or, as to defense obligations only, any alleged breach) of Your obligations in this Agreement or any breach of Your representations, warranties, or obligations set forth in this Agreement; or (iii) Your negligence, fraud, misrepresentation, willful misconduct, violation of applicable law, violation of card network rules, or infringement of the rights of any person or entity.
10.2. XAGGO Liability. XAGGO shall be liable to You, if any, for any and all Claims (as defined below) arising out of or in connection with XAGGO’s gross negligence, fraud, misrepresentation, willful misconduct, violation of applicable law, or infringement of the rights of any person or entity.
10.3. Indemnification Process. The party seeking indemnification pursuant to this Section 10 (the “Indemnitee”) shall: (a) promptly notify the other party (the “Indemnitor”), in accordance with Section 13.3, of the Claim for which indemnification is sought, but in no event longer than five (5) business days of the Indemnitee’s knowledge of the Claim: (b) make all reasonable efforts to provide Indemnitor with all information and material in Indemnitee’s possession regarding the Claim; (c) furnish to Indemnitor such assistance as Indemnitor may reasonably request in connection with the investigation, settlement and defense of the Claim; and (d) grant Indemnitor sole control over the defense and settlement of the Claim. Within ten (10) days of Indemnitor’s receipt of the notice of the Claim or demand, Indemnitor shall notify the Indemnitee as to whether Indemnitor is assuming the entire control (subject to this Section) of the defense, compromise or settlement of the matter, including the counsel that Indemnitor has selected. The Indemnitor shall institute and maintain any such defense diligently and reasonably and shall keep the Indemnitee fully advised as to the status thereof. Further, Indemnitor shall not dispose of or settle any such Claim in Indemnitee’s name or in any manner which may adversely affect Indemnitee’s rights or interests (which includes, without limitation, any settlement that imposes pecuniary or other liability or an admission of fault or guilt on the Indemnitee or would require the Indemnitee to be bound by an injunction of any kind) without Indemnitee’s prior written consent, which consent shall not be unreasonably withheld or delayed. Indemnitee shall not be liable hereunder for any settlement entered into without its prior written consent (which consent shall not be unreasonably withheld or delayed).
10.4. Definition of “Claim.” “Claim” means an action, allegation, assessment, cause of action, cease and desist letter, charge, citation, claim, demand, directive, fine, lawsuit or other litigation or proceeding, or notice issued or submitted by, from or on behalf of a third party, including any governmental agency, and all resulting judgments, bona fide settlements, penalties, damages (including consequential, indirect, special, incidental or punitive damages), losses, liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees, expenses and costs) incurred in connection therewith.
11. Disclaimers and Limitation of Liability.
11.1. Disclaimers. EXCEPT FOR ANY EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT: (i) THE SERVICES, WEBSITES, AND ALL CONTENT, SOFTWARE, MATERIALS AND OTHER INFORMATION PROVIDED BY XAGGO OR OTHERWISE ACCESSIBLE TO YOU IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND (ii) XAGGO AND ITS RESPECTIVE AFFILIATES AND SUPPLIERS MAKE NO WARRANTY OF ANY KIND (AND DISCLAIM ALL WARRANTIES OF ANY KIND) WITH RESPECT TO THE FOREGOING, WHETHER EXPRESS, STATUTORY OR IMPLIED, AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, XAGGO MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. XAGGO MAKES NO WARRANTY REGARDING THE QUALITY OF THE PAYMENT SERVICES.
11.2. The Internet. XAGGO and its suppliers make no warranties regarding the quality, reliability, timeliness or security of the Internet and other globally linked computer networks, or the web sites established thereon including the Website, will be uninterrupted or error free.
11.3. Limitation of Liability.
11.3.1. YOU AGREE THAT XAGGO SHALL NOT BE LIABLE FOR: ANY FAILURES CAUSED BY ANY PERSON OR ENTITY OTHER THAN XAGGO THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF A PAYMENT, OR THE SERVICES.
11.3.2. EXCEPT WHERE YOU COMMIT FRAUD OR MISUSE THE SERVICES AND EXCEPT WHERE THE CLAIM IS SUBJECT TO INDEMNIFICATION UNDER SECTION 10 OF THIS AGREEMENT: (i) IN NO EVENT WILL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES OR SUPPLIERS, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR LOST PROFITS OR FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE PARTY OTHERWISE LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); AND (ii) IN NO EVENT WILL XAGGO’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE GREATER OF: (a) THE AMOUNT OF PAYMENTS IN DISPUTE, OR (b) $100 USD. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated in this paragraph and that these limitations are an essential basis of the bargain between the parties.
12. Arbitration, Complaints, Dispute Resolution, and Governing Law and Forum.
12.1. ARBITRATION: Please read this Section carefully. It affects Your rights and will impact how claims You and XAGGO may have against each other are resolved.
12.2. Complaint Process. If You wish to make a complaint about the Services, You can make a complaint by sending an e-mail to customerservice@XAGGO.com. Most of Your concerns can be resolved through XAGGO’s customer service department. XAGGO’s goal is to learn about and try to resolve the underlying causes of the concern. To that end, the parties shall cooperate and attempt in good faith to resolve any potential dispute promptly by discussions between persons who have authority to resolve the potential dispute. If the parties are unable to resolve the potential dispute amicably at that level, You shall report the potential dispute to XAGGO’s legal team at legal@XAGGO.com. Any of Your disputes related to billing or XAGGO Fees must be raised within ninety (90) days of the relevant transaction or they are deemed permanently waived by You.
12.3. AGREEMENT TO ARBITRATE. ANY DISPUTE ARISING BETWEEN YOU AND XAGGO THAT CANNOT BE RESOLVED INFORMALLY AS DESCRIBED IN SECTION 12.2 (INCLUDING WITHOUT LIMITATION ANY CONTROVERSY OR CLAIM ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE ALLEGED BREACH THEREOF) SHALL BE FINALLY RESOLVED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (THE “AAA”) UNDER ITS COMMERCIAL ARBITRATION RULES, INCLUDING THE AAA’S SUPPLEMENTAL PROCEDURES FOR CONSUMER-RELATED DISPUTES, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THE ARBITRATION WILL BE CONDUCTED IN THE ENGLISH LANGUAGE, BEFORE A SINGLE ARBITRATOR, IN THE CITY OF MIAMI, FLORIDA. THE ARBITRATOR SHALL DECIDE THE DISPUTE IN ACCORDANCE WITH THE SUBSTANTIVE LAW OF THE STATE OF FLORIDA. COSTS OF AAA WILL BE SHARED EQUALLY BY THE PARTIES, EXCEPT THAT THE ARBITRATOR SHALL AWARD THE PREVAILING PARTY COSTS AND ATTORNEYS’ XAGGO FEES IN ANY ARBITRATION WHERE THE PREVAILING PARTY PREVAILS IN CONNECTION WITH CLAIMS THAT A PARTY FAILED TO TIMELY REMIT XAGGO FEES OR AMOUNTS DUE TO THE OTHER PARTY.
12.4. CLASS ACTION WAIVER AND JURY TRIAL WAIVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES AGREE THAT ANY PROCEEDING, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED REPRESENTATIVE ACTION. IF FOR ANY REASON A CLAIM OR DISPUTE PROCEEDS IN COURT RATHER THAN ARBITRATION, EACH PARTY KNOWINGLY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTER-CLAIM RELATING OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BETWEEN THE PARTIES. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES HEREBY AGREE THAT: (1) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (2) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
12.5. Applicable Law and Forum.
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to its conflict of laws principles and You agree, with respect to any court action permitted under this Agreement, to exclusive personal jurisdiction in the state and federal courts located in the State of Florida, County of Miami-Dade.
13. Miscellaneous.
13.1. Amendments to this Agreement.
XAGGO may amend this Agreement, at any time with notice that XAGGO deems to be reasonable under the circumstances, by posting the revised version on XAGGO’s Website, or by email (each, an “Updated Agreement”). The Updated Agreement will be effective as of the time it is posted, but will not apply retroactively. Your continued access or use of the XAGGO Services will constitute Your acceptance of the Updated Agreement. If You disagree at any time with amendments made, You must contact XAGGO at: customerservice@XAGGO.com to cancel Your Services and Account, which will also terminate Your access to the Services. This Agreement may not otherwise be amended except by written agreement, signed by You and an authorized XAGGO representative.
13.2. Notices.
All notices and other communications under this Agreement must be in writing and may be made by means of email or a posting on, or update to the XAGGO Website. Notices to You will be delivered to the email address provided to XAGGO or as modified by You through notice to XAGGO or by posting on or update to the XAGGO Website. Notices to XAGGO can be made via email at legal@XAGGO.com.
13.4. E-Sign Consent.
XAGGO and its affiliates and third party service providers may need to provide You with certain communications, notices, agreements, billing statements, or disclosures in writing (“Communications”) regarding the Services. Your agreement to this E-sign Consent confirms Your ability and consent to receive Communications electronically from XAGGO, its affiliates, and its third party service providers, rather than in paper form, and to the use of electronic signatures in our relationship with You (“Consent”). If You choose not to agree to this Consent or You withdraw Your Consent, You may be restricted from using the Services.
13.4.1. Electronic Delivery of Communications and Use of Electronic Signatures.
Under this Consent, XAGGO may provide all Communications electronically by email, by text message, or by making them accessible via XAGGO Websites. Communications include, but are not limited to, (1) agreements and policies required to use the Services (e.g. this Consent, the XAGGO Privacy Policy, and this Agreement), (2) payment authorizations and transaction receipts or confirmations, (3) account statements and history, (4) and all federal and state tax statements and documents. We may also use electronic signatures and obtain them from You.
13.4.2. Withdrawal of Consent to Electronic Communications.
You may withdraw Your consent to receive electronic Communications at any time, by writing to XAGGO. However, withdrawal of Your consent to receive electronic Communications may result in termination of Your access to the Services. Any withdrawal of Your consent will be effective after a reasonable period of time for processing Your request.
13.4.3. Email Address.
It is Your responsibility to keep Your email address up-to-date and to notify XAGGO of any changes in Your email address. You understand and agree that if XAGGO sends You an email, but You do not receive it because Your primary email address on file is incorrect, out-of-date, blocked by Your service provider, or You are otherwise unable to receive emails, XAGGO will still be deemed to have provided the email to You.
13.4. Entirety and Severability.
This Agreement contains the entire understanding between You and XAGGO with respect to its subject matter, superseding all prior and contemporaneous representations, understandings, and any other oral or written agreements between the parties with respect to such subject matter. If any provision of this Agreement, or the application thereof, is found invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this Agreement will remain in full force.
13.5. Waiver.
The failure by a party to insist upon strict performance of any of the provisions contained in this Agreement shall in no way constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions. No waiver of any provision or of any breach of this Agreement shall be deemed a further or continuing waiver of such provision, breach, or any other provision of this Agreement.
13.6. Binding Upon Successors and Permitted Assigns.
This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. You may not assign this Agreement or any rights, obligations, or privileges under this Agreement without XAGGO’s prior written consent. XAGGO may assign its rights and obligations under this Agreement at any time without notice to You.
13.7. Force Majeure.
XAGGO will not be responsible for delays, errors, failures to perform, interruptions or disruptions in the Services or Websites resulting from any act, omission or condition beyond XAGGO’s reasonable control, whether or not foreseeable or identified, including without limitation acts of God, labor strikes, lockouts, riots, acts of war, governmental regulations, fire, power failure, earthquakes, severe weather, floods or other natural disasters, hackers, or the failure of Yours or any third party’s hardware, software or communications equipment or facilities.
14. Mobile Device Terms.
If You are accessing the Services from a mobile device using an application (the “Application”), the following end-user license agreement (“EULA”) terms apply to You in addition to the above:
14.1. XAGGO grants You the right to use the Application only for Your personal use. You must comply with all applicable laws and third party agreements (for example, Your wireless data service agreement). The Application may not contain the same functionality as the Website. Deleting the Application does not deactivate or delete Your profile or Account with XAGGO; please see Section 8, which contains information about service cancellations.
14.2. XAGGO owns, or is the licensee to, all right, title and interest in and to its Application, including all rights under patent, copyright, trade secret, trademark, and any and all other proprietary rights, including all applications, renewals, extensions, and restorations thereof. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse-engineer, disassemble, or otherwise attempt to derive source code from any Application and You will not remove, obscure, or alter XAGGO’s copyright notice, trademarks or other proprietary rights notices affixed to, contained within, or accessed in conjunction with or by any Application.
14.3. Geographic Restrictions: The Mobile Device Software and access to XAGGO’s Hosted Software are provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Hosted Software outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Hosted Software from outside the United States, you are responsible for compliance with local laws.
14.4 Mobile Application Terms
14.4.1. License Grant
XAGGO, through the Mobile Device Software, provides the Services to you. Subject to your compliance with the terms of this Agreement, XAGGO grants you a personal, limited, terminable, non-exclusive, non-transferable license to:
(a) download, install, and use the Mobile Device Software for your personal, non-commercial use on your Mobile Device strictly in accordance with the Mobile Device Software’s documentation; and
(b) access and use on such Mobile Device the Services made available in or otherwise accessible through the Mobile Device Software, strictly in accordance with this Agreement.
14.4.2. License Restrictions
(a) You shall not:
(i) copy the Mobile Device Software;
(ii) modify, translate, adapt or otherwise create derivative works or improvements, of the Mobile Device Software;
(iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Mobile Device Software, the Hosted Software or any part thereof;
(iv) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Mobile Device Software;
(v) rent, lease, lend, sell, sublicense, assign, distribute, publish, publicly perform or display, transfer or otherwise make available the Mobile Device Software or any features or functionality of the Mobile Device Software, to any third party for any reason, including by making the Mobile Device Software available on a network where it is capable of being accessed by more than one device at any time;
(vi) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Mobile Device Software; or,
(vii) upload or introduce any virus or malware to the Hosted Software.
(b) You are responsible for keeping your account login credentials (user name and password) confidential and not sharing them with unauthorized users. If you disclose your login credentials to someone, you are responsible for any use, disclosure, additions, deletions and modifications of your User Data.
15. Reservation of Rights
You acknowledge and agree that the Mobile Device Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Mobile Device Software under this Agreement or any other rights thereto other than to use the Mobile Device Software in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. XAGGO and its licensors and service providers reserve and shall retain each of their entire right, title and interest in and to the Mobile Device Software and Website. All rights not specifically granted in this Agreement are reserved by XAGGO. XAGGO shall own all rights in any functionality, features, modification or customization of the Mobile Device Software.
16. Entire Agreement
This Agreement constitutes the entire agreement between you and XAGGO with respect to the Services and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect thereto. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
Last Updated: 3 of June, 2020.