Last Update: Jan 26th 2021
1. Agreement to Terms
By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
ARBITRATION NOTICE: YOU ACKNOWLEDGE AND AGREE THAT ALL DISPUTES BETWEEN YOU AND XSERVER WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING UNLESS:
(I) YOU ARE ACCESSING OR USING THE SERVICES ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY;
(II) YOU ARE NOT ACCESSING OR USING THE SERVICES ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY AND YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN SECTION 20.3; OR
(III) A DISPUTE BETWEEN YOU AND XSERVER IS A LITIGABLE ACTION (AS DEFINED IN THE SECTION 20.3).
3. Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore.
Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion. For example, we may remove a feature that users don’t use very often.
4. Who May Use the Services
You may use the Services only if you are 18 years or older and capable of forming a binding contract with XServer and are not barred from using the Services under applicable law.
If you want to use certain features of the Services you’ll have to create an account (“Account”) and become a registered user (“User”), which you can do through the Site. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
6. Description of Services
You can use the Services to develop, test, host and run a web or mobile device application, or Unity a game (“Application”). You can optionally designate an Application as public on through the Services. Please be aware, however, that other Users will be able to access, copy, and download a public Application.
7. End User Privacy
You agree that you will protect the privacy and legal rights of the end users of your Applications (the “End Users”). You must obtain any consents required by applicable data protection laws and provide legally adequate privacy notice, access and protections for End Users. If End Users provide you with user names, passwords or other login information or other personal information (“End User Information”), you agree to notify such End Users that the End User Information will be available to your Application and to XServer for the purposes of providing you the Services.
• 8.1. General
Subject to the Terms, the Services are provided to you for free up to certain limits, as described on our Home page. Usage over these limits requires your purchase of paid subscription (”Paid Subscription”) in order to access additional resources or services, as described on the Pricing page.
• 8.2. Free Subscription.
If you subscribe for Free, you will be able to access the Services up to the limits described on the Home page. Once you reach such limits, your Application’s ability to access and use the Services will be stopped. If you subscribe for Free, we (or our third party payment processor) will not charge you of money in any way, no credit card required.
• 8.3. Paid Subscription.
If you purchase a Paid Subscription, you will be able to access the Services up to the limits described on the Pricing page, subject to payment of a fee that is based on your usage of the Services (“Usage Fees”). The applicable Usage Fees are outlined on our Pricing page or will otherwise be provided to you at the time of your purchase. The Usage Fees will be charged at the interval indicated to you at the time of purchase (e.g., each month or quarter).
If you purchase a Paid Subscription, we (or our third party payment processor) will automatically charge you the applicable Usage Fee based on your usage of the Services, as determined by Xserver in its sole discretion, after the end of the interval over which the Usage Fee was incurred (e.g., each month or year).
To the fullest extent permitted by law, you waive all claims relating to the amount of Usage Fee charged unless you provide us written notice of a dispute within sixty (60) days of the charge.
• 8.4. Payments
If you purchase a Paid Subscription (each, a “Subscription”), we may ask you to supply additional information relevant to your transaction, including, without limitation, your credit-card number, the expiration date of your credit card, and your address(es) for billing (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you purchase a Subscription, you authorize us to provide your Payment Information to our third party payment processors so we can complete your purchase and to charge your payment method for the Subscription Fee or Usage Fee (each, a “Fee”) associated with your Subscription, and any associated taxes. You may, in some cases, need to provide additional information to verify your identity before completing your transaction (such information is included within the definition of Payment Information).
By agreeing to these Terms and purchasing a Subscription, you acknowledge that your Subscription has recurring payment features, as described above, and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or XServer. We may also periodically authorize your payment method in anticipation of applicable fees or related charges. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or the Subscription in accordance with these Terms.
• 8.5. Taxes
Unless otherwise stated, the Fees do not include any taxes. You are responsible for paying all taxes associated with your purchases hereunder. If XServer has the legal obligation to pay or collect taxes for which you are responsible under this paragraph, the appropriate amount will be charged to and paid by you.
• 8.6. Late Payments
If XServer does not received payment on the applicable payment date, interest will accrue on past due amounts at the rate of 1.5% per month (or the highest rate permitted by law, if less). You will reimburse XServer for the reasonable costs of collection in connection with any late payment, including reasonable fees and expenses of attorneys.
• 8.7. Cancelling Subscriptions
You may cancel your Subscription at any time. PLEASE NOTE, HOWEVER, THAT ALL SALES ARE FINAL. IF YOU CANCEL A PAID SUBSCRIPTION, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION.
To cancel, you can either (i) email us through the Support button on the Home page, and follow any instructions we provide to you in response to your cancellation request, or (ii) initiate a cancellation through your GumRoad Library.
You will be responsible for all Fees (plus any applicable taxes and other charges) incurred for the then current Subscription period. If you cancel a Paid Subscription, we will set your Plan back to Free.
Cancelling your Paid Subscription won’t cancel your Account. See Section 16 (Termination) below for information on terminating your Account.
• 8.8. Changes to Subscription
Please note that our Subscription Fees, Usage Fees, and any usage limits associated with our Subscriptions are subject to change, although we will notify you before any changes to your Subscription. You agree that your purchase of a Subscription is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by XServer regarding future functionality or features.
• 8.9. Restrictions
You may not develop multiple Applications to simulate or act as a single Application, or otherwise access the Services in a manner intended to avoid incurring Subscription Fees.
9. Proprietary Rights
• 9.1. Definitions
For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services, including any Applications that any User creates using the Services and any source code related thereto; and (ii) “User Content” means any Content that any User (including you) provide to be made available through the Services. Content includes without limitation User Content.
• 9.2. Ownership Rights
XServer does not claim any ownership rights in your User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, XServer or its licensors (including other Users) exclusively own all right, title and interest in and to the Services and Content (excluding your User Content), including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
• 9.3. Rights Granted by XServer
Subject to your compliance with these Terms, XServer grants you a limited, revocable, non-exclusive, nontransferable, non-sublicensable license to (i) access and use the Services solely for the purposes of developing, testing, and running the Applications; (ii) access and view the Content solely in connection with your permitted use of the Services.
Notwithstanding the foregoing, components of the Services released under an open source license are subject to the applicable open source license under which such components were released (the “Open Source License”). To the limited extent that an Open Source License expressly supersedes these Terms, such Open Source License governs your access to and use of the applicable component provided under such Open Source License.
• 9.4. Rights in User Content Granted by You
By making any User Content available through Services you hereby grant to XServer a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform and distribute your User Content (including your Applications) solely as necessary to: (i) operate and provide the Services and Content to you, (ii) to make your Application available to the End Users, and (iii) to provide other Users, including Collaborators, with access to your User Content to the extent permitted by you through the Services.
You are solely responsible for (and XServer has no responsibility to you or to any third party for) your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by XServer on or through the Services — including, without limitation, the hosting and operation of your Application by XServer — will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You assume all risks associated with your User Content, including anyone’s reliance on its accuracy, completeness or usefulness.
• 9.5. Removal of Content
You can remove certain User Content through the Services. However, some of your User Content (including, without limitation, posts or comments that have been made on our community pages or any User Content that you designate as public or share with Collaborators through the functionality of the Services) may not be completely removed and copies of your User Content may continue to exist on the Services in archive or backup form.
You agree to immediately take down any User Content that violates Section 12 (General Prohibitions), including, without limitation, if you receive a takedown request from XServer. In the event you fail to comply with such a request, XServer reserves the right to take down your User Content and/or disable your Application(s).
Notwithstanding the foregoing, XServer reserves the right (but will have no obligation) to remove any or all Content from the Services at any time. We may remove or delete your User Content within a reasonable period of time after the termination or cancellation of your Account in accordance with Section 16 (Termination). We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content. You are solely responsible for securing and backing up your User Content.
• 9.6. Feedback
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by clicking the Support button on the Home page. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
10. No Endorsements
XServer has not reviewed, and cannot review, all User Content submitted by Users, and cannot therefore be responsible for the User Content. By operating the Services, XServer does not represent or imply that it endorses the User Content, or that it believes it to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. User Content may be offensive, indecent, or otherwise objectionable, as well as may contain technical inaccuracies, typographical mistakes, and other errors. User Content may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. XServer disclaims any responsibility for any harm resulting from any User Content.
You agree that XServer may identify you or your company and use your company’s trade names, trademarks, service marks, logos domain names and other distinctive brand features on the Site, in marketing materials, in customer lists and in financial reports to identify you or your company as a user of the Services, and you hereby grant us a non-exclusive, royalty-free license to do so in any media now or later developed in connection with any marketing, promotion or advertising of XServer or the Services.
12. General Prohibitions
You agree not to do any of the following:
• Post, upload, publish, submit, transmit or otherwise use the Services to develop, host or distribute any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
• Use, display, mirror or frame the Services or any individual element within the Services, XServer’s name, any XServer trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without XServer’s express written consent;
• Access, tamper with, or use non-public areas of the Services, XServer’s computer systems, or the technical delivery systems of XServer’s providers;
• Attempt to probe, scan or test the vulnerability of any XServer system or network or breach any security or authentication measures;
• Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by XServer or any of XServer’s providers or any other third party (including another user) to protect the Services or User Content;
• Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by XServer or other generally available third-party web browsers;
• Send any advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation in violation of any applicable law or regulation;
• Use the Services or Content, or any portion thereof, for the benefit of any third party or in any manner not permitted by these Terms;
• Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
• Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
• Sell, resell, rent or lease the Services to any third parties;
• Use the Service to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
• Interfere with or disrupt the integrity or performance of the Services or third-party data contained therein;
• Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
• Impersonate or misrepresent your affiliation with any person or entity;
• Access the Services for the purpose of bringing an intellectual property infringement claim against XServer or for the purpose of creating a product or service competitive with the Services;
• Violate any applicable law or regulation; or
• Encourage or enable any other individual to do any of the foregoing.
In the event you become aware of any violation of the foregoing prohibitions by an End User of an Application, you will immediately terminate such End User’s account on your Application.
13. XServer’s Enforcement Rights
Although we’re not obligated to monitor access to or use of the Services or User Content or to review or edit any User Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements.
We reserve the right, but are not obligated, to remove or disable access to any User Content, including, without limitation, any Application, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any User Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
14. DMCA/Copyright Policy
XServer respects copyright law and expects its users to do the same. It is XServer’s policy to terminate in appropriate circumstances Users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see XServer’s Copyright Policy , for further information.
15. Links to Third Party Websites or Resources
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
You may cancel your Account at any time by sending an email to us with the Support button on the Home page. We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. If we terminate your access to and use of the Services due to your breach of these Terms or you cancel your Account, you will not receive a refund for any pre-paid Subscription Fees.
You are solely responsible for exporting your User Content from the Services prior to termination of your Account for any reason, provided that if we terminate your Account, we will provide you a reasonable opportunity to retrieve your User Content.
Upon any termination, discontinuation or cancellation of Services or your Account, the following provisions will survive: Section 9.1 (Definitions), Section 9.2 (Ownership Rights), Section 9.6 (Feedback), Section 12 (General Prohibitions), Section 14 (DMCA/Copyright Policy), Section 15 (Links to Third Party Websites or Resources), Section 16 (Termination), Section 17 (Warranty Disclaimers), Section 18 (Indemnity), Section 19 (Limitation of Liability), Section 20 (Dispute Resolution), and Section 21 (General Terms).
17. Warranty Disclaimers
THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis.
We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
You will indemnify, defend and hold harmless XServer and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your User Content, or (iii) your violation of these Terms.
19. Limitation of Liability
NEITHER XSERVER NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT XSERVER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL XSERVER’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO XSERVER FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO XServer, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN XSERVER AND YOU.
20. General Terms
These Terms constitute the entire and exclusive understanding and agreement between XServer and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between XServer and you regarding the Services and Content. If any provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of Section 20.3 above or by court of competent jurisdiction, if you are accessing and using the Services on behalf of a company or other legal entity or timely opt out of arbitration by sending us an Arbitration Optout Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without XServer’s prior written consent.
Any attempt by you to assign or transfer these Terms, without such consent, will be null. XServer may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by XServer under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. XServer’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of XServer. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
22. Contact Information
If you have any questions about these Terms or the Services, please contact XServer by clicking the Support button on the Home page.