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Terms of Service

examinatr Terms of Service 

Last Updated: Dec, 2024

Table of Contents:

  • Introduction 
  • Using Our Services 
  • Product Purchases 
  • Your Account 
  • Payment 
  • Privacy 
  • Text Message Program Terms and Conditions 
  • Content You Submit or Share 
  • Intellectual Property Protection 
  • About Software in our Services 
  • Modifying and Terminating our Services 
  • Our Warranties and Disclaimers 
  • Liability for our Services 
  • Business/Employer Uses of our Services 
  • Indemnification 
  • About these Terms 
  • Third Party Terms 
  • Binding Arbitration 

 

  1. Introduction

Welcome to examinatr! 

Thanks for using the examinatr services (including the www.examinatr.com website, the examinatr mobile app, the examinatr vendor management platform, and any other websites, mobile apps, web-based applications, tools, products, or services provided by examinatr that link to or reference these Terms) (collectively, the “Services”). The Services are provided by axploit LLC d/b/a examinatr (“axploit”, “examinatr”, “we”, “our”, or “us”), located at 91 Clay St, Brooklyn, NY 11222, U.S.A. 

BY ACCEPTING THESE TERMS OF SERVICE, BY CLICKING OR TAPPING A CHECKBOX INDICATING ACCEPTANCE OR BY CLICKING OR TAPPING “ACCEPT” (OR OTHER SIMILAR ACTION) OR BY USING THE SERVICES, YOU AGREE TO THESE TERMS OF SERVICE.   

Please read these Terms of Service (“Terms”) carefully.  Our Services are very diverse, so sometimes additional terms or product requirements (including age requirements) may apply. If additional terms or conditions are available with or applicable to the relevant Services, then those additional terms become part of your agreement with us if you use those Services.  By accessing or using the Services, you intend and agree to be legally bound by these Terms.  You may wish to print or save a local copy of the Terms for your records. 

YOU ACKNOWLEDGE AND AGREE THAT THESE TERMS OF SERVICE LIMIT OUR LIABILITY AND THAT YOU ARE RELEASING US FROM VARIOUS CLAIMS IN SECTIONS 12 AND 13 BELOW. THESE TERMS ALSO CONTAIN A BINDING ARBITRATION PROVISION IN SECTION 18 THAT AFFECT YOUR RIGHTS UNDER THESE TERMS WITH RESPECT TO THE SERVICES. 

2. Using our Services 

You must follow any policies made available to you within the Services, including our Community Guidelines [https://www.examinatr.com/l/community-guidelines/]. You must be at least 16 years old to use the Services.  

If your Products are sold through the Services, the axploit Seller Agreement that you mutually signed with axploit also applies to your use of the Services (the “Seller Agreement”), and with respect to the sale of your Products under these Terms you are deemed to be a Vendor (as defined in Section 3 below).  In the event of a conflict or inconsistency between these Terms and the Seller Agreement, the Seller Agreement will prevail with respect to the subject matter in conflict or that is inconsistent. 

“Talent” means anyone using the Services to market or promote the Services and/or Products pursuant to an axploit Talent Agreement mutually signed with axploit (a “Talent Agreement”).  In the event of a conflict or inconsistency between these Terms and the Talent Agreement, the Talent Agreement will prevail with respect to the subject matter in conflict or that is inconsistent. 

Don’t misuse our Services.  For example, don’t interfere with our Services, try to access them using a method other than the interface and the instructions that we provide, or extensively or automatically copy any content from the Services (in other words, no scraping). You may use our Services only as permitted by law, including applicable export and re-export control laws and regulations. We may suspend or stop providing our Services to you if you do not comply with our terms or policies, if we are investigating suspected misconduct, or for any other reason. 

Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access through them (“Content”). You may not use Content, except as permitted in these Terms, by its owner, or as otherwise permitted by law. These Terms do not grant you the right to use any branding or logos used in our Services, including the examinatr or axploit names and logos. Don’t remove, obscure, or alter any legal notices displayed in or along with our Services.  We reserve all rights in our Content, Services, names, and logos. 

Except as provided in the axploit Seller Agreement or axploit Talent Agreement, if applicable, you may use the Content only for your personal informational purposes and for shopping and ordering on or through the Services in accordance with these Terms, and for no other purpose.  Except as provided in the foregoing in this paragraph, we do not grant to you or any person any right to use, reproduce, copy, modify, transmit, display, publish, sell, license, create derivative works of, publicly perform, or distribute by any means, method, or process whatsoever, now known or hereafter developed, any of the Content, including without limitation by transferring, downloading, or otherwise copying any Content onto any disk drive or other storage medium. Any use of the Content, except as specifically permitted in these Terms or as otherwise expressly permitted in the Content or in a writing signed by axploit, is strictly prohibited. 

Our Services display some Content that is not our own.  For example, some Content belongs to our advertisers, other third parties, or other users (collectively, “Third Party Content”) or is Your Content (as defined in Section 8 below).  We are not responsible for, and you waive all of our liability with respect to, Third Party Content or Your Content.  Third Party Content and Your Content is the sole responsibility of the individual or entity that makes it available via the Services. We may review Third Party Content or Your Content to determine whether it is illegal or violates our policies, and we may remove or refuse to display Third Party Content or Your Content that we believe violates our policies or the law. But we do not generally review content beforehand, and we are not obligated to do so.   

You consent to receive transactional, marketing, and other communications related to the Service, Products, or axploit or its partners by email, recurring automated SMS/iMessage messages, and in-app push notifications.  You may opt out of our marketing emails by clicking on the “unsubscribe” link in marketing e-mails. You may opt out of in-app push notifications by disabling notifications in the Services’ settings.  You may opt out of receiving SMS/iMessage by texting “Stop” or “Do Not Send” in response to text messages.  Please be aware that there may be a brief period before we are able to process your opt-out.  

Some of our Services are available on mobile devices or may utilize SMS/iMessage, which may cause you to incur SMS or data charges with your wireless provider.  Please be aware that we have no control over these charges, and if you do not wish to be charged, you should stop using the mobile or SMS/iMessage features (as applicable).  

3. Product Purchases 

This Section 3 applies to your purchase of products (each, a “Product”) through the Services.  The Products are available for purchase through axploit’s arrangements with unaffiliated vendors (each, a “Vendor”). A description of each Product available for purchase through the Services can be found on the applicable Product page on the Services. Product information, including descriptions, technical information, specifications, and other information related to a Product (collectively, “Product Information”) are provided for your convenience in your selection of Products. All prices are quoted in U.S. dollars. The accuracy or completeness of Product Information is not guaranteed and is subject to change without notice. The appearance of the Products on the Services may differ from the physical article depending on your Internet browser or the device or monitor you use.  

All prices posted on Services are subject to change without notice. The price charged for a Product will be the price in effect at the time an order is placed and will be set out in an order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your total and will be itemized in your order confirmation email.  We are not responsible for pricing, typographical, or other errors in any Product Information or offer by us, and we reserve the right to modify or cancel any orders arising from such errors.  

Title and risk of loss for Products pass to you upon axploit’s or a Vendor’s transfer of the Products to a third party carrier.  Shipping and delivery dates are estimates only and cannot be guaranteed. If a carrier is not able to successfully deliver the Products, it will leave a notice with contact information to arrange a new delivery date. We are not liable for any delays or failure in shipment due to incorrect information provided by you, your failure to receive a shipment from a carrier, or other factors outside of our reasonable control. 

We will accept a return of Products in an unopened container and issue to you a refund of your purchase price, less the original shipping and handling costs, provided that such return is requested within thirty (30) calendar days of the delivery date and provided that the Products and the container are returned in their original condition.  To return a Product, you must contact us by giving us written request for a return, providing the order information and the Product you would like to return using the contact us page or by email to [email protected]. 

When we receive your returns request, axploit or the applicable Vendor will contact you in a timely manner, with more information, including the address where the Products must be returned. You must return the Products in accordance with the instructions received from axploit or the Vendor within fourteen (14) days from the date axploit or the Vendor provides you with a return address.  If you are returning a Product due to a material defect in the Product, the Vendor will pay for the cost of shipping the Product to the Vendor. Otherwise the return shipping cost will be at your expense unless the Vendor has agreed with axploit to pay for return shipping.  You bear the risk of loss for the Products during shipment, and title will pass to axploit or the Vendor upon axploit’s or the Vendor’s receipt of a return.  Once axploit or the Vendor receives the returned Products, we will process your refund back to the same Payment Method (as defined in Section 5 below) you used to make the original purchase on the Services.  

Many Products are packaged with the Vendor’s warranty and service information, including specific terms and conditions. Such warranties may vary from Product to Product.  THE APPLICABLE VENDOR, AND NOT axploit, IS RESPSONSIBLE FOR THE WARRANTY. 

axploit IS NOT RESPONSIBLE FOR ANY DAMAGES IN CONNECTION WITH A PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES DUE TO (A) TRANSPORTATION; (B) STORAGE; (C) IMPROPER OR NEGLIGENT USE; (D) FAILURE TO FOLLOW PRODUCT INSTRUCTIONS; (E) MODIFICATIONS; (F) COMBINATION OR USE WITH ANY PRODUCTS, MATERIALS, PROCESSES, SYSTEMS OR OTHER MATTER NOT PROVIDED OR AUTHORIZED IN WRITING BY axploit; (G) UNAUTHORIZED REPAIR; (H) NORMAL WEAR AND TEAR; OR (I) EXTERNAL CAUSES SUCH AS ACCIDENTS, ABUSE, OR OTHER ACTIONS OR EVENTS BEYOND AXPLOIT’S REASONABLE CONTROL.  

TO OBTAIN THE WARRANTY: YOU MUST SEND THE REQUEST IN WRITING BY FOLLOWING THE INSTRUCTIONS PROVIDED BY THE VENDOR IN THE SHIPPING CONTAINER AND/OR THE PRODUCT PACKAGING. 

TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, AXPLOIT SHALL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY PRODUCT PURCHASED THROUGH THE SERVICES AND SHALL HAVE NO LIABILITY ARISING FROM YOUR OR ANY THIRD PARTY’S USE OF SUCH PRODUCT. 

AXPLOIT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, OR NON-INFRINGEMENT, IN CONNECTION WITH PRODUCTS PURCHASED THROUGH THE SERVICES.  

4. Your Account 

You may need an account in order to use the Services. If you create your own account, you agree that all registration information you give us will be accurate and current.  If your account has been assigned to you by an administrator, such as your employer, different or additional terms may apply and your administrator may be able to access or disable your account.  You will timely notify us of any changes to any of the foregoing information.  You are responsible for controlling access to any PCs, mobile devices, or other end points that you allow to store your Services password, or on which you enable a “Remember Me” or similar functionality (“Activated Device”). Accordingly, you agree that you will be solely responsible for all activities that occur under your Services accounts, including the activities of any individual with whom you share your Services account or an Activated Device. 

To protect your account, keep your password confidential. You are responsible for the activity that happens on or through your account.  If you learn of any unauthorized use of your password, please contact us at [email protected].   

5. Payment  

You agree to pay all amounts owed to us for Products purchased through the Services under any terms, policies or other written or electronic agreement we may have in place.  We may require you to maintain valid credit card or other payment account information (each, a “Payment Method”) with us in order to receive the Services or purchase Products, and if so, you hereby authorize us to charge your Payment Method for Products purchased through the Services. Your right to purchase Products through the Services is conditioned upon our receipt of payment.  Refusal of Product delivery does not release you from payment liability. If a payment cannot be charged to your Payment Method or if a charge is canceled for any reason, or if you fail to maintain a valid, up-to-date Payment Method or to keep your payments current, we reserve the right to immediately either suspend or terminate your access and account immediately without notice, thereby terminating these Terms. Any failure to maintain a valid, up-to-date Payment Method with us or to keep your payments current will constitute a material breach of these terms, for which we may suspend or terminate your access to the Services immediately without notice. Interest will be charged on all unpaid delinquent amounts at the rate of 1.5% per month or the highest rate permitted by applicable law, whichever is lesser.  You agree to reimburse us for all collection agency fees, attorneys’ fees and other costs we may incur to collect delinquent amounts you owe to us.    

6. Privacy  

Our Privacy statement explains how we treat your personal information and protect your privacy when you use our Services. By using our Services, you agree that we can collect, use, and share data from you as described in our privacy statement. We are not responsible for any information or Content that you share with others via your use of the Services.  You assume all privacy, security, and other risks associated with providing any information, including personally identifiable information, to other users of the Service.   

  1. Text Message Program Terms and Conditions

You can choose to participate in the examinatr Text Message Program (“Program”) by electing to receive recurring marketing SMS and MMS text messages (“Texts”) that may include news, promotional alerts, special offers, and other content from examinatr. By signing up to receive Texts, you agree to be bound by these Terms, including Section 18, Binding Arbitration. If you do not agree to these Terms, and the examinatr Privacy statement, please do not sign up to receive Texts. 

You must be at least 13 years of age to join the Program. If you are under the age of 18 but at least 13 years of age, you may participate in the Program only under the supervision of a parent or legal guardian who agrees to be bound by these Program Terms. If you are a parent or legal guardian agreeing to these Program Terms on behalf of a child between the ages of 13 and 18, you acknowledge and agree that you are fully responsible for the child’s participation in the Program, including any legal liability the child may incur. 

By enrolling to receive Texts, you certify that (1) you are at least 13 years of age, (2) you are the account holder of the mobile number you are enrolling (or you have the account holder’s permission to enroll the number), and (3) you agree to the practices described in these Terms and in the examinatr Privacy statement. 

You may opt in to receive recurring promotional Texts in various ways, including by providing your mobile number as part of the examinatr account registration process or in response to an in-app prompt. You consent to the use of electronic record-keeping to document your consent to receive Texts. Although Texts are complimentary, message and data rates may apply. Depending on your text and data plan, you may be charged by your carrier to receive Texts. The number of Texts you receive each month may vary depending on your interactions with us. 

Consent to receive marketing Texts is not required as a condition of purchasing any goods or services. 

Autodialer or non-autodialer technology may be used to send the Program Texts to the mobile phone number you enroll. 

You agree to maintain accurate, complete, and up-to-date information with us, including by emailing [email protected] immediately if you cease being the account holder of the mobile number you enrolled to receive Texts.   

To stop receiving Texts, reply by texting STOP to any Text(s) you have received. You may receive one additional message to confirm that you have opted out.  You can also text HELP if you need assistance.  

examinatr does not guarantee availability or performance of text messaging services and is not responsible for delays related to the transmission of Texts or for undelivered Texts.  

Texts may not be available in all areas or supported by all carriers or all devices. Supported carriers include: AT&T, T-Mobile, Verizon Wireless, Sprint, Boost, Virgin Mobile, U.S. Cellular, Cricket, MetroPCS, and other regional carriers.  Wireless carriers may be added or removed from the Program at any time without notice. Check with your carrier for details. Carriers are not liable for delayed or undelivered Texts.  

If you have questions about the Program, you can send an email to [email protected].

8. Content You Submit or Share  

“Your Content” means, without limitation, any text, videos, images, contest or sweepstakes entries, images, graphics, photographs, video files, illustrations, audio files, essays, questions, trademarks, logos, brand elements, comments, suggestions, any ideas for features, modifications, enhancements, refinements, products, technologies, offerings, promotions, strategies, or product feature names, or any related documentation, artwork, computer code, diagrams, and any other content, information, or materials you submit, upload, and/or share through the Services or otherwise share with us. In providing Your Content, you must follow these Terms and the rules and policies referenced in these Terms. You retain ownership of any intellectual property rights that you hold in Your Content. In short, what belongs to you stays yours.  If your Products are sold through the Services, the Seller Agreement has additional terms and conditions that apply to Your Content that relates to the Products that are available for sale.  If you are Talent, the Talent Agreement has additional terms and conditions that apply to Your Content. 

When you upload, submit, or otherwise share Your Content to or through our Services or otherwise provide Your Content to us (such as through email), you give us (and other users and those we work with) a perpetual, irrevocable, worldwide, non-exclusive, sublicensable, transferable, royalty-free license to use Your Content for any purpose, including without limitation reproduction, storage, modification, creation of derivative works, disclosure, transmission, distribution, publication, broadcast, streaming, publicly performing, translating, adapting, and posting, including use for advertising, publicity, or promotional purposes in any media without further permission, consent, payment, or other consideration, unless prohibited by law.  axploit has no obligation to review, consider, or implement Your Content, or to return to you all or part of any Your Content for any reason.  You acknowledge that Your Content is and will be treated as non-confidential and non-proprietary.  This license is perpetual and irrevocable, and continues even if you stop using our Services, provided that if Your Content includes personal information, our Privacy statement may provide you with certain rights in connection with your personal information.   

For all of Your Content, you represent and warrant that: (a) you have full authority to provide and license Your Content to axploit; (b) Your Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party; (c) Your Content is accurate; and (d) the use of Your Content will not violate these Terms and will not cause injury to any person or entity.  

axploit has the right but not the obligation to monitor any activity and to edit or remove any of Your Content or Submissions.  axploit takes no responsibility and assumes no liability for any of Your Content or Submissions posted by you or by any third party.  We may publicly display your profile information, posts, and actions you take on the Services or on third-party applications connected to your account (such as reviews you write and comments you post) in our Services, including displaying in ads and other commercial content.     

As further provided in our Community Guidelines, you agree that you will not use the Services to: 

  • Violate any law or a third-party’s rights; 
  • Submit excessive or unsolicited commercial messages or spam any users; 
  • Submit malicious content or viruses; 
  • Solicit other people’s login information, credit card numbers, or other sensitive information; 
  • Harass or bully other users; or 
  • Post content that is hate speech, threatening or pornographic, that incites violence or that contains nudity or graphic or gratuitous violence. 
  1. INTELLECTUAL PROPERTY PROTECTION

As we ask others to respect our intellectual property rights, we respect the intellectual property rights of others, and require our users and customers to do so.  If you are a copyright owner or its agent and believe that any content residing on or accessible through the Services infringes upon your copyrights, you may submit a notification under the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent (the “Designated Agent”) with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):  

  • Identification of the work or material being infringed. 
  • Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that we are capable of finding it and verifying its existence. 
  • Contact information for the notifying party (the “Notifying Party”), including name, address, telephone number, and email address. 
  • A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law. 
  • A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is the copyright owner or is authorized to make the complaint on behalf of the copyright owner. 
  • A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed. 

Please also note that the information provided in a notice of copyright infringement may be forwarded to the user who posted the allegedly infringing content. After removing material in response to a valid DMCA notice, we will notify the user responsible for the allegedly infringing material that we have removed or disabled access to the material. We will terminate, under appropriate circumstances, users who are repeat copyright infringers, and we reserve the right, in our sole discretion, to terminate any user for actual or apparent copyright infringement. 

If you believe you are the wrongful subject of a DMCA notification, you may file a counter-notification with us by providing the following information to the Designated Agent at the address below: 

  • The specific URLs of material that we have removed or to which we have disabled access. 
  • Your name, address, telephone number, and email address. 
  • A statement that you consent to the jurisdiction of U.S. District Court for the District of Delaware, and that you will accept service of process from the person who provided the original DMCA notification or an agent of such person. 
  • The following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.” 
  • Your physical or electronic signature. 

Upon receipt of a valid counter-notification, we will forward it to Notifying Party who submitted the original DMCA notification.  The original Notifying Party (or the copyright holder he or she represents) will then have ten (10) days to notify us that he or she has filed legal action relating to the allegedly infringing material.  If we do not receive any such notification within ten (10) days, we may restore the material to the Services. 

The contact information for our Designated Agent is: 

axploit LLC 

Attention:  Copyright Agent  

91 Clay St

11222 Brooklyn

UNITED STATES

Email:  [email protected] 

 If you believe that any of your intellectual property rights other than copyrights have been infringed, please e-mail us at [email protected].  We reserve the right, in our sole and absolute discretion, to suspend or terminate any user who infringes the intellectual property rights of axploit or others, and/or to remove, delete, edit or disable access to such person’s content.   You agree that we have no liability for any action taken under this Section.    

  1. About Software in our Services

You may be required to download software (such as a mobile) to use the Services or certain features of the Services, and the Services may enable you to access software running on our (or our vendors’) servers (collectively, “Software”).  You agree that we retain the ownership of all rights, title, and interest in and to the Software. Certain Software may update automatically on your device once a new version or feature is available, and you consent to such automatic updating.  

axploit gives you a personal, worldwide, royalty-free, non-assignable, non-sublicensable, and non-exclusive license to use the Software to access the Services.  This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by us, in the manner permitted by these Terms and any additional terms and conditions referred to by these Terms, such as the Community Guidelines.  You may not copy, modify, distribute, sell, or lease any part of our Services or Software, nor may you reverse engineer or attempt to extract the source code of the Services or Software, unless laws prohibit those restrictions or you have our written permission. 

There may be software programs contained within certain Software that have been licensed to us by third parties. The term “Software” as used herein shall refer to this third-party software except where the term “Software” is used in the context of our ownership. The same terms and conditions, including all limitations and restrictions, set forth in these Terms apply to each third-party software program contained in the Software. You acknowledge and agree that any third-party components are owned by their applicable licensors. We do not make any representations or warranties about the operation or availability of such third-party software. Neither we, nor our licensors, shall be liable for any unavailability or removal of such third-party software. We are not responsible for any communications to or from such licensors, or for the collection or use of information by such licensors. You consent to the communications enabled and/or performed by such third-party software, including automatic updating of the third-party software without further notice. You agree that such third-party software licensors are intended third-party beneficiaries under these Terms. 

  1. Modifying and Terminating our Services

We are constantly changing and improving our Services. We may add or remove functionalities or features, and we may suspend or stop a Service altogether, at any time, without any notice or liability. 

You can stop using our Services at any time, although we’ll be sorry to see you go. We may also stop providing Services to you, or add or create new limits to our Services, at any time. 

Sections 8, 12 – 18 will survive termination or expiration of these Terms indefinitely, along with any other provisions, such as definitions, that by their nature are intended to survive termination or expiration. 

  1. Our Warranties and Disclaimers

OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS, NEITHER axploit NOR, EXCEPT WHERE YOU ACT AS TALENT OR AS A VENDOR OF PRODUCTS THROUGH THE SERVICES, ITS LICENSORS, SUPPLIERS, ADVERTISERS, OR DISTRIBUTORS MAKE ANY SPECIFIC PROMISES ABOUT THE PRODUCTS OR SERVICES. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTIONS OF THE PRODUCTS OR SERVICES, OR THE RELIABILITY OR AVAILABILITY OF THE PRODUCTS OR SERVICES, OR THE ABILITY OF THE PRODUCTS OR SERVICES TO MEET YOUR NEEDS.  WE ALSO DO NOT MAKE ANY WARRANTIES OR COMMITMENTS RELATING TO NON-INFRINGEMENT, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR ERROR-FREE OR UNINTERRUPTED OPERATIONS IN CONNECTION WITH THE PRODUCTS OR SERVICES.  EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, WE PROVIDE THE PRODUCTS AND SERVICES AND ALL INFORMATION PROVIDED THROUGH THE SERVICES “AS-IS.” 

TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, axploit SHALL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY PRODUCT YOU PURCHASE THROUGH THE SERVICES AND SHALL HAVE NO LIABILITY WHATSOEVER ARISING FROM YOUR USE OF SUCH PRODUCT, INCLUDING LIABILITY FOR ANY WRONGFUL DEATH OR PERSONAL INJURY, BASED ON ANY LEGAL THEORY WHATSOEVER, INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY. 

SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES IN CONNECTION WITH THE PRODUCTS AND THE SERVICES. 

YOU AND YOUR HEIRS, SUCCESSORS, AND ASSIGNS HEREBY FOREVER IRREVOCABLY RELEASE, DISCHARGE, AND HOLD HARMLESS US, OUR AFFILIATES, AND OUR AND THEIR SUCCESSORS AND ASSIGNS, AND OUR AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS  (COLLECTIVELY, “RELEASED PARTIES”) FROM, AND AGREE NOT TO SUE ANY RELEASED PARTY FOR, ANY LIABILITIES, CLAIMS, OBLIGATIONS, SUITS, ACTIONS, DEMANDS, EXPENSES, AND DAMAGES WHATSOEVER (COLLECTIVELY, “LIABILITIES”) THAT YOU MAY HAVE AGAINST ANY RELEASED PARTY WHETHER EXISTING NOW OR IN THE FUTURE, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF OR IN CONNECTION WITH YOUR OR A THIRD PARTY’S CONDUCT RELATED TO ANY PRODUCTS OR THE USE OF THE SERVICES.  YOU UNDERSTAND AND ACKNOWLEDGE THAT THE FOREGOING SENTENCE RELEASES AND DISCHARGES ALL LIABILITIES, WHETHER OR NOT THEY ARE CURRENTLY KNOWN TO YOU, AND YOU WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542. YOU UNDERSTAND THE MEANING OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” BY AGREEING TO THESE TERMS AND THIS WAIVER, YOU ASSUME ALL RISK ARISING FROM YET UNKNOWN CLAIMS. 

  1. Liability for our Services

TO THE EXTENT NOT PROHIBITED BY LAW, axploit (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND, AND EXCEPT WHERE YOU ACT AS TALENT OR AS A VENDOR OF PRODUCTS THROUGH THE SERVICES, OUR LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES. 

TO THE EXTENT NOT PROHIBITED BY LAW, THE TOTAL LIABILITY OF axploit (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND, AND EXCEPT WHERE YOU ACT AS TALENT OR AS A VENDOR OF PRODUCTS THROUGHT THE SERVICES, OUR LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, FOR ANY AND ALL CLAIMS UNDER THESE TERMS OR RELATING TO YOUR USE OF THE PRODUCTS OR SERVICES, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US TO PURCHASE THE PRODUCT OR USE THE SERVICES (OR, IF WE CHOOSE, TO PROVIDE YOU THE PRODUCT OR SERVICES AGAIN). 

IN ALL CASES RELATING TO PROVIDING YOU THE PRODUCTS OR SERVICES, axploit (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND, AND EXCEPT WHERE YOU ACT AS TALENT OR AS A VENDOR OF PRODUCTS THROUGHT THE SERVICES, ITS LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE OR THAT IS DUE TO EVENTS OUTSIDE OF OUR REASONABLE CONTROL, SUCH AS WARS, CRIMINAL ACTIVITIES, STORMS, DELAYS (INCLUDING, BUT NOT LIMITED TO, DELAYS SHIPPING THE PRODUCTS, OR FAILURES OR DELAYS OF COMMON CARRIERS), PUBLIC HEALTH EMERGENCY, NATURAL DISASTERS, ACTS OF GOVERNMENT, SUPPLY INTERRUPTIONS, OR TELECOMMUNICATION OR INTERNET FAILURES. 

14. Business/Employer Uses of our Services 

If you are using our Services on behalf of a business or employer, you are accepting these Terms on their behalf, and that business or employer agrees to be bound by these Terms.  

15. Indemnification 

You hereby agree to indemnify, defend, and hold harmless axploit, its affiliated companies, and its and their predecessors, successors, and assigns, and its and their respective directors, officers, employees, agents, representatives, partners, and contractors from and against all claims, losses, expenses, damages and costs (including, but not limited to, reasonable attorneys’ fees), resulting from or arising out of your actual or alleged breach of these Terms, any Content you provide through the Services, or your use or misuse of the Products or Services.  However, you will not be responsible for claims, damages, and costs which are found by a court of competent jurisdiction to have arisen solely from our violation of applicable law.     

16. About these Terms 

We may modify these Terms or any additional terms that apply to a Service for any reason, for example, to reflect changes to the law or changes to our Services. You should look at the Terms regularly and the “Last Updated” date at the beginning of these Terms.  We’ll use reasonable efforts to give you notice of these modifications, such as posting notice of modifications to these Terms on this web page, through the Services, or via email.   By continuing to use the Services after we make these modifications, you agree that you will be subject to the modified Terms.  If you do not agree to the modified terms for a Service, you should discontinue your use of that Service. 

If there is a conflict between these Terms and any additional terms for a Service, the additional terms will control for that conflict. 

These Terms control the relationship between axploit and you. They do not create any third-party beneficiary rights (except in the limited case of Section 17 below).  If you do not comply with these Terms, and we don’t take action right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future).  If it turns out that a particular term is not enforceable, this will not affect any other terms. 

The laws of the United States and the State of Delaware, excluding Delaware’s conflict of laws rules, will apply to any disputes arising out of or relating to these terms or the Services. 

You may not assign or delegate your rights or obligations relating to these Terms or your account for the Services without our prior written consent.  We may assign these terms or assign or delegate any of our rights or obligations at any time.   

For information about how to contact axploit, please email [[email protected]]. 

  1. Third Party Terms

You agree that in addition to these Terms, your use of our mobile app is subject to the usage rules set forth in Apple’s App Store terms of service, if you download our app from the App Store, or in Google’s Play terms of service, if you download the app from Google Play, or any other third party platform, developer or distributor end-user license agreement and/or terms and conditions by which you agree to be bound when you download our mobile app or otherwise access the Services. 

Without limiting the generality of the foregoing, if you downloaded our mobile app from Apple, you and axploit acknowledge and agree to the following:  This agreement is concluded between you and axploit only, and not with Apple Inc. (“Apple”). The mobile app downloaded from Apple may only be used on Apple hardware products. axploit, not Apple, is solely responsible for the app and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the app. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the app, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be axploit’s sole responsibility.  axploit, not Apple, is responsible for addressing any claims by you or any third party relating to the app or your possession and/or use of the app, including, but not limited to: (i) product liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.  In the event of any third-party claim that the app or your possession and use of the app infringes that third party’s intellectual property rights, Apple will have no responsibility for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.  You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.  Apple, and Apple’s subsidiaries, are third party beneficiaries of this agreement, and upon your acceptance of the terms and conditions of the agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the agreement against you as a third-party beneficiary thereof. 

  1. Binding Arbitration

Without limiting your waiver and release in Section 12 and 13, you agree to the following: 

This Section 18 applies to you, except where you act as a Vendor and the Seller Agreement applies to a Dispute (as defined below) or you act as Talent and the Talent Agreement applies to a Dispute.  You agree that any Dispute between you and axploit (including any disputes between you and a third-party agent of axploit) shall be resolved through binding and final individual arbitration instead of through court proceedings after completion of the Mandatory Informal Dispute Resolution Process set forth below (the “Dispute Resolution and Arbitration Agreement”). In arbitration, there is no judge or jury and there is less discovery and less appellate review than in court. “Dispute” shall be interpreted broadly and shall include any claim, controversy, counterclaim, or other disputes arising between you and axploit or between you and a third-party agent of axploit relating to these Terms, a Product, the Text Program, the Services or any Software, including for example any: (1) claims for relief or theories of liability, whether based in contract, tort, statute or otherwise; (2) claims that arose before this Dispute Resolution and Arbitration Agreement; and (3) claims that arise after the cancelation or expiration of this Dispute Resolution and Arbitration Agreement. 

This Dispute Resolution and Arbitration Agreement does not preclude either party from seeking action by federal, state, or local government agencies.  Notwithstanding anything in this Dispute Resolution and Arbitration Agreement to the contrary, either you or axploit may elect to have a claim heard in small claims court (at any time prior to the appointment of an arbitrator) if the claim is within the jurisdiction of that court and it remains in that court and is not removed or appealed to a court of general jurisdiction. In addition, you and axploit retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms. 

18(a):  Mandatory Informal Dispute Resolution Process 

For all Disputes, whether pursued in small claims court or arbitration, you or we must first give the other party an opportunity to resolve the Dispute by sending a written description of the claim to the other party (“Notice”).  The Notice shall be personally signed by you or us and include: (1) a detailed description of the claims; (2) a detailed description of the relief sought, including a calculation for it; and (3) information sufficient to identify any transaction at issue (the “Mandatory Informal Dispute Resolution Process”).  If you submit a Notice, you shall send it to axploit LLC, 91 Clay St, Brooklyn, NY 1222, U.S.A. with a copy to axploit LLC, Attn: General Counsel, 91 Clay St, Brooklyn, NY 1222, U.S.A.  If we submit a Notice, we shall send it to the mailing address and/or email address we have on file for you.  Upon receipt of a fully completed Notice, the parties agree to negotiate in good faith in an effort to informally resolve the Dispute.  At times, a telephone conference might be helpful to facilitate the resolution of a Dispute.  If we request a telephone conference, you agree to personally participate (with your counsel if you are represented).  If we are unable to resolve the claim within 60 days after receipt of a fully completed Notice, you or we may then pursue a claim in arbitration (or in small claims court, if applicable).  Compliance with this Mandatory Informal Dispute Resolution Process is a condition precedent to initiating any formal proceeding.  Any applicable statutes of limitations shall be tolled while the parties complete this Mandatory Informal Dispute Resolution Process.  A court shall have the authority to enforce this Mandatory Informal Dispute Resolution Process and to enjoin the filing and prosecution of arbitrations.  A party may also elect to raise non-compliance with this provision in arbitration.   

We each agree that if you fail to timely pay amounts due, we may assign your account for collection, and the collection agency may pursue through any lawful means, including in small claims court, claims limited strictly to the collection of the past due amounts and any interest or cost of collection permitted by law. 

18(b):  Arbitration Process 

Either you or we may start arbitration proceedings after completion of 16(a). You must send a letter requesting arbitration and describing your claim to our registered agent, Corporation Service Company (“CSC”), to begin arbitration. Please find below the Pennsylvania address for CSC (the CSC office in your jurisdiction may be located through the Secretary of State’s website): 

axploit LLC

91 Clay St

Brooklyn, NY 11222 

Attn: Legal Department 

You agree that the Federal Arbitration Act and federal arbitration law apply to these Terms. However, except as otherwise provided in the Dispute Resolution and Arbitration Agreement, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any Dispute relating to the interpretation, applicability, enforceability, or formation of these Terms including, but not limited to, a claim that all or any part of these Terms is void or voidable. 

The Dispute will be arbitrated by a single neutral arbitrator mutually agreeable to both of us. If we cannot agree, after conferring in good faith, on the selection of an arbitrator within 30 days of the date that the request for arbitration was received by CSC, the Dispute will be administered by the American Arbitration Association (“AAA”) under its applicable rules, as modified by this Dispute Resolution and Arbitration Agreement.  If AAA is unable or unwilling to administer the arbitration consistent with this Dispute Resolution and Arbitration Agreement, the parties shall confer in good faith in an effort to agree on an alternative arbitration administrator that will administer the arbitration consistent with this Dispute Resolution and Arbitration Agreement. If the parties cannot agree, you and we will jointly petition a court of competent jurisdiction to appoint an arbitration administrator that will administer the arbitration consistent with this Dispute Resolution and Arbitration Agreement.  The arbitration shall take place a location that is reasonably convenient for you.    

Unless we agree to use a different set of rules, the arbitrator will apply the applicable AAA arbitration rules (or the applicable rules of the arbitration administrator as set forth above), as modified by this Dispute Resolution and Arbitration Agreement. The AAA rules are available at : https://www.adr.org/ or by calling 800-778-7879.  The arbitrator’s decision in any such arbitration will be final and binding upon the parties to the proceeding and shall have no preclusive or binding effect in any proceeding involving different parties.  The arbitration award may be enforced in any court of competent jurisdiction.  You and axploit agree that the arbitration proceedings will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration, by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies, or as specifically permitted by state law. 

If axploit initiates arbitration, we shall pay all fees for the arbitration proceeding.  If you initiate arbitration, the AAA rules (or the applicable rules of the arbitration administrator as set forth above) shall govern the allocation of fees.  The arbitrator may award fees and costs to a party if they determine that the claims and/or proceeding is frivolous or brought for an improper purpose or for the purpose of harassment.  The arbitrator shall apply Federal Rule of Civil Procedure 68 after entering the award.  The arbitrator shall apply the Terms just as a court would. The arbitrator shall issue a detailed ruling that includes the essential findings of fact and conclusions of law upon which the award is based.   An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief, attorneys’ fees, and costs. 

18(c):  Individual Relief; Class Action Waiver; Jury Trial Waiver 

YOU AND WE AGREE THAT THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING DECLARATORY AND INJUNCTIVE RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST ANYONE THAT IS NOT A PARTY TO THE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT PRESIDE OVER ANY FORM OF CLASS, COLLECTIVE, JOINT, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION SHALL BE CONDUCTED AND DECIDED ON AN INDIVIDUAL BASIS. CLASS ARBITRATION IS EXPRESSLY PROHIBITED. YOU AND WE AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED OR LITIGATED ON A CLASS, COLLECTIVE, JOINT, OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL OR IN CONNECTION WITH A REQUEST FOR PUBLIC INJUNCTIVE RELIEF). THIS WAIVER OF CLASS ACTIONS AND COLLECTIVE RELIEF IS AN ESSENTIAL PART OF THE DISPUTE RESOLUTION AND ARBITRATION AGREEMENT; IF IT IS DEEMED INVALID OR UNENFORCEABLE WITH RESPECT TO A PARTICULAR CLAIM OR REQUEST FOR RELIEF (SUCH AS A REQUEST FOR PUBLIC INJUNCTIVE RELIEF), AND ALL APPEALS OF THAT DECISION ARE EXHAUSTED OR IT IS OTHERWISE FINAL, THEN THAT CLAIM OR REQUEST FOR RELIEF SHALL PROCEED IN A COURT OF COMPETENT JURISDICTION BUT BE STAYED PENDING ARBITRATION OF ALL REMAINING CLAIMS AND REQUESTS FOR RELIEF. 

TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES WAIVE THE RIGHT TO A JURY TRIAL. 

18(d):  Additional Procedures Pertaining Only to Mass Arbitrations 

If 25 or more claimants pursue or intend to pursue demands for arbitration against axploit raising similar claims and counsel for the claimants are the same or coordinated (“Mass Arbitrations”), then the following additional procedures shall apply (“Additional Procedures Pertaining Only to Mass Arbitrations”).  You agree that if you or your counsel elect to pursue your Dispute as part of Mass Arbitrations, then the adjudication of your Dispute might be delayed. The Mass Arbitrations will be subject to a staged bellwether process and the AAA Multiple Consumer Case Filing Fee Schedule (as defined in the AAA rules) shall apply (or the mass arbitration fee schedule of the designated arbitration body, as set forth above) if there is an administrator. Counsel for the claimants and counsel for axploit shall each select 20 cases per side (40 total) to be filed in and to proceed in arbitration in bellwether proceedings to be adjudicated individually, with each case assigned to a separate arbitrator. In the meantime, no other demands for arbitration may be prosecuted and/or filed, processed, or deemed filed with AAA (or the designated arbitration body, as set forth above) if there is an arbitration administrator. Should the parties be unable to resolve the remaining demands for arbitration after the adjudication or resolution of the first set of bellwether proceedings, each side shall select 20 additional cases per side (40 total) to be prosecuted and/or filed in and to proceed in arbitration in bellwether proceedings to be adjudicated individually, with each case assigned to a separate arbitrator. In the meantime, no other demands for arbitration may be prosecuted and/or filed, processed, or deemed filed with AAA (or the designated arbitration body, as set forth above) if there is an administrator. This staged process shall continue until the parties adjudicate or resolve all of the Mass Arbitrations. No fees shall be assessed for a given case until that case is selected for a bellwether proceeding. If these Additional Procedures Pertaining Only to Mass Arbitrations apply to your demand for arbitration, any statute of limitations applicable to your claims shall be tolled from the time that the first cases are selected for the first set of bellwether proceedings until your demand for arbitration is selected for a proceeding, withdrawn, or otherwise resolved.  A court shall have the authority to enforce these Additional Procedures Pertaining Only to Mass Arbitrations and, as needed, to enjoin the filing or prosecution of arbitrations and/or the assessment of fees. 

18(e):  Survival and Modifications 

As referenced above, this Dispute Resolution and Arbitration Agreement shall survive termination of the Terms.  Notwithstanding any provision to the contrary, modifications to this Dispute Resolution and Arbitration Agreement shall not apply to any Dispute for which Notice has already been provided to you or axploit. 



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