Terms and Conditions

Effective Date: 10/01/2009

Acceptance of Terms

This is a legal agreement ("Agreement") between you, the user, together with any company or other business entity you are representing, if any (collectively, the "Member") and XDev Software, LLC ("XDev"). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT PURCHASE, OR USE THE SERVICE.

The Service is offered to Member conditioned upon Member's acceptance without modification of this Agreement. Member acknowledges that, from time to time, it may be necessary for XDev to update or revise certain provisions of the Agreement. Unless explicitly stated otherwise, any new features to the service shall be subject to this Agreement.

Definitions

Financial Source: "Financial Source" is the Member's payment method. This payment method can be in the source of a credit card or checking account.

Charges and Billing

Member hereby authorizes XDev to charge Member’s Financial Source in advance for all applicable fees incurred by Member in connection with Member’s chosen Service. Current charges and pricing can be found here:

http://www.clubdynamix.com/pricing.aspx

Member hereby acknowledges that XDev will be charging Member’s Financial Source in accordance with the payment schedule of the Service for which Member has purchased. Member further acknowledges that it is Member’s responsibility to notify XDev of any changes to Member’s Financial Source to avoid any disruption or termination of service. All charges shall be paid in U.S. dollars. XDev reserves the right to change any fees (which includes but is not limited to, charging a fee for packages, options, upgrades and/or a Service for which XDev does not currently charge a fee) or billing methods at any time, provided, however, that such modifications shall not take effect earlier than thirty (30) days after XDev posts such modification on the XDev Web Site. XDev also has the right to collect applicable taxes and impose premium surcharges for some areas of the Service and these surcharges may apply immediately after Member registers for the Service.

Member agrees to pay Member’s account balance on time. If Member does not pay account balance on time, Member agrees to the terms in the Payment Penalty section of this Agreement. Member also agrees to pay any taxes, including sales or use taxes, resulting from Member’s use of the Service. This section shall in no way limit any other remedies available to XDev. Member also acknowledges and agrees that Member will be billed for and will pay any outstanding balances if Member cancels Member’s Service or Member’s account is terminated as described in the Termination section of this Agreement. Member must notify XDev of any billing problems or discrepancies within sixty (60) days after they first appear on Member’s Financial Source account statement. If Member does not notify XDev within sixty (60) days, Member waives any right to dispute such problems or discrepancies.

Payment Penalty

If Member is thirty (30) days past due on a payment, Member agrees to a pay an additional ten percent (10%) charge of the current payment according to the payment schedule of the Service the Member has chosen. Member also agrees to pay an additional thirty dollar ($30) fee if funds are not available through Member’s Financial Source at time of collection of charges. Nonpayment of services will cause your account to be deemed delinquent and XDev may terminate or suspend your account for nonpayment. Member is responsible and liable for any fees, including attorney and collection fees, that XDev may incur in its efforts to collect any remaining balances due from Member.

Member Content

XDev assumes no responsibility for monitoring the Service for inappropriate Member content or conduct. The Member is solely responsible for the photos, profiles, messages, notes, text, information, music, video, advertisements and other content that Member uploads, publishes or displays on or through the Service, or transmits to or shares with other individuals. Member understands and agrees that XDev may, but is not obligated to, review and delete or remove (without notice) any Member Content in its sole discretion, including without limitation Member Content that in the sole judgment of the XDev violates this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of individuals or others.

XDev does not claim ownership of the Member Content that Member provides to the Service. Member grants XDev a worldwide, royalty-free, non-exclusive license to (i) host, use, reproduce, modify, distribute, transmit, combine with information provided by third parties, and publicly display the Member Content on and through the Service and in XDev’s promotional or advertising materials (only for the limited purpose of promoting the Service), and (ii) sublicense to third parties such Member Content to the extent necessary for the creation and maintenance of, in part or in whole, such Web sites. No compensation will be paid or due Member with respect to XDev’s or its sub licensee’s use of the materials as licensed above.

Member can request content at time of termination of the Service. Member acknowledges that it is at XDev’s discretion as to when the Member’s content is retrieved and provided to Member.

Proprietary Rights

The Member hereby agrees that any and all program code designed to provide the Service shall remain the sole and exclusive property of XDev, including, without limitation, all copyrights, trademarks, patents, and any other proprietary rights of the property.

Termination

Member may terminate this agreement at anytime. Upon member initiated termination of this agreement, member agrees to pay the fee described in the Member’s chosen payment schedule if Member terminates agreement on Member’s own will. Both Member and XDev may terminate or cancel Member's Account at any time. Member understands and agrees that the cancellation of Member's Account is Member's sole right and remedy with respect to any dispute with XDev.

Upon termination of Member's Account for any reason, Member shall remain liable for and XDev reserves the right to (a) collect all charges, fees, commitments, and obligations incurred or accrued by Member; (b) delete any Member Content, listings, messages or other information in connection with Member's account; and (c) refuse Member future access to the Service. In no event shall XDev be required to refund, redeem, or pay amounts to Member upon termination of Service.

Indemnification

Member agrees to indemnify and hold XDev, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners, and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney's fees, arising out of or in connection with any Member Content, any Third Party Content Member may post or share on or through the Service, your use of the Service, your conduct in connection with the Service or with other individuals of the Service, or any violation of this Agreement or of any law or the rights of any third party.

Liability

IN NO EVENT WILL CLUB DYANMIX OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SITE OR THE SERVICE OR ANY OF THE SITE CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SITE, EVEN IF CLUB DYANAMIX IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOT WITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE SERVICE DURING THE TERM OF MEMBERSHIP, BUT IN NO CASE WILL THE COMPANY'S LIABILITY TO YOU EXCEED $500. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO THE COMPANY FOR THE SERVICE, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM COMPANY, REGARDLESS OF THE CAUSE OF ACTION.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

Without limiting the foregoing, neither XDev nor its suppliers are nor will be responsible for any of Member's data residing on the Service or XDev’s suppliers' hardware. Member is responsible for backing-up Member's data and information that may reside on the Service or XDev’s suppliers' hardware, whether or not such information is produced through the use of the Service. It is Member's responsibility to take the necessary steps to ensure that Member's primary means of business is maintained (if applicable).

Notices

All notices, requests, demands and other communications required under this Agreement shall be in writing and shall be deemed duly given and received (i) if personally delivered, on the date of delivery, (ii) if mailed, three (3) days after deposit in the United States mail, registered or certified, return receipt requested, postage prepaid and addressed as provided below, or (iii) if by a courier delivery service providing overnight or “next-day” delivery, on the next business day after deposit with such service, addressed as follows:

XDev Software, LLC
Attn: Club Dynamix
P.O. Box 31898
Mesa, AZ 85275-1898