Xumo Play Terms of Service

Effective Date: July 25, 2024

Note: These terms only apply to use of Xumo Play (defined below) for which these terms may be provided/linked within the user interface of the website or app through which you are accessing Xumo Play and are available at the Xumo Play website at: https://xumo.com/playterms.

Note: These terms do not apply to use of Xumo devices, such as a Xumo TV or Xumo Stream Box, or apps which may be used to control such Xumo device. Use of Xumo devices is governed instead by the Xumo Platform Terms of Use, which can be found here: https://www.xumo.com/terms.

Introduction

Please read these Xumo Play Terms of Service (this “Agreement”) carefully as it contains important information regarding how you can use Xumo Play and what responsibilities you and Xumo have to each other.

Xumo LLC, a limited liability company organized in the State of Delaware, whose registered office is at 1701 John F. Kennedy Blvd., Philadelphia, Pennsylvania, 19103-2838, e-mail info@xumo.com, and its affiliated companies (including successors and assigns, collectively “Xumo,” “we,” “us,” or “our”) provides the Xumo Play streaming service (“Xumo Play”).

This Agreement governs your use of Xumo Play, which is designed to access and play digital content on a compatible Internet-connected device (e.g., personal computer, smartphone, tablet, streaming box, smart television) (each a “Device”). Xumo Play includes (i) any websites (including https://play.xumo.com/), applications, software, user interfaces, features, functionalities, recommendations and reviews branded as Xumo Play or which link to this Agreement, and (ii) all material, including but not limited to, movies, television shows, advertisements, audiovisual streams, images, artwork, video, text, and audio delivered through Xumo Play (all of (ii) is collectively termed “Content”).

You acknowledge by either accessing or using Xumo Play, including but not limited to by either visiting or playing content on the Xumo Play website, that you have read this Agreement, understand it, and agree to be bound by its terms.

You acknowledge that you are accepting this Agreement on behalf of all persons who use Xumo Play on any device you use or control. You are solely responsible for ensuring that all other users of Xumo Play on your devices understand and comply with this Agreement. You are liable for all unauthorized use of Xumo Play on your devices. If you do not understand and agree to the terms and conditions of this Agreement, you must not access or use Xumo Play, and you should uninstall and delete any instances of a Xumo Play application or software you installed or downloaded on any of your devices.

Note: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION IN SECTION 12 OF THIS AGREEMENT THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO ALL SERVICES. UNLESS YOU HAVE OPTED OUT IN A TIMELY MANNER, THE ARBITRATION PROVISION REQUIRES THAT ALL DISPUTES BE RESOLVED IN INDIVIDUAL ARBITRATIONS OR SMALL CLAIMS COURT PROCEEDINGS. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT. The foregoing paragraph does not apply to users in the UK or Ireland.

Xumo, in its discretion, shall determine which features, functionality, and Content to make available through Xumo Play, and you acknowledge and agree that Xumo can change the features, availability, and functionality at any time with no notice to you.

You represent and warrant that you are at least 18 years of age and, if applicable, that you have provided us with information that is accurate, complete, and current.

WE RESERVE THE RIGHT TO RESTRICT, SUSPEND, OR BLOCK YOUR USE OF XUMO PLAY IN THE EVENT WE DETERMINE THAT 1) YOUR USE OF XUMO PLAY IS IN VIOLATION OF THIS AGREEMENT, 2) THE DEVICE THROUGH WHICH YOU ACCESS XUMO PLAY HAS BEEN HACKED, STOLEN, OR COMPROMISED, OR 3) CONTENT YOU ACCESS IS NOT PROPERLY AUTHORIZED OR LICENSED IN YOUR COUNTRY, VIOLATES APPLICABLE LAW, OR HAS BEEN IMPROPERLY PROVIDED TO YOU. WE MAY ALSO RESTRICT, SUSPEND, OR BLOCK YOUR USE OF XUMO PLAY IF WE BELIEVE IT IS NECESSARY TO PROTECT XUMO, OUR AFFILIATES, OUR BUSINESS PARTNERS, OUR PERSONNEL, OTHER USERS OF XUMO PLAY, OR A CONTENT PROVIDER FROM WHAT WE BELIEVE TO BE UNAUTHORIZED ACTIVITY.

1. General
1. Acceptance of the Agreement. You may access Xumo Play in accordance with this Agreement. You represent that you have read, understood, and agree to be bound by this Agreement in connection with your access to and/or use of Xumo Play. If you do not agree to this Agreement, you may not access or use Xumo Play. By using Xumo Play, you will be deemed to have agreed to this Agreement.
2. Eligibility. Xumo Play is for users who are 18 years of age or older and are located in the United States, Canada, the United Kingdom, or Ireland (including their respective territories and possessions) (the “Territory”). You may not access or use Xumo Play if you are outside of the Territory or are barred from receiving Xumo Play under this Agreement or applicable law. By accessing or using Xumo Play, you represent and warrant that (i) you are not the subject of United States sanctions or other applicable sanction laws of the country in which you are located, and (ii) your access to and use of Xumo Play will comply with the applicable export control and sanction laws of the United States or other applicable jurisdiction.
3. Supplemental Terms. Supplemental terms and conditions may apply to your use of certain aspects or features of Xumo Play (“Supplemental Terms”), which we will provide to you or post on Xumo Play. For clarity, the Xumo Play Support Page is deemed a set of Supplemental Terms. Any Supplemental Terms are in addition to and deemed part of this Agreement, and to the extent there is a conﬂict between the Supplemental Terms and this Agreement, the Supplemental Terms will prevail with respect to such conﬂict (except that this Agreement will control in the event of a conflict with the Xumo Play Support Page). If you do not agree to the applicable Supplemental Terms, you may not use the features of Xumo Play to which they apply.
2. Services
1. Availability of Services. We grant you a limited, non-sublicensable, non-transferable license to access, download, and use Xumo Play for your personal use and only in accordance with this Agreement. You agree not to use Xumo Play for public or commercial performances of any kind. Except as we speciﬁcally agree in writing, no element of Xumo Play, including but not limited to the Content, may be used or exploited in any way other than as part of the authorized version of Xumo Play made available to you. We may change, suspend, or discontinue Xumo Play, in whole or in part, for any users or all users or any set of users, at any time for any reason without notice or liability to you. We make no representations or warranties about the quality, accuracy, or availability of Xumo Play, including but not limited to the Content.
  
  Some features of Xumo Play may be limited by location or may not function without access to location information, and (to the maximum extent permitted by applicable law) we will not be liable to you for limitations or restrictions on access to Content without access to location information.
2. Devices and Performance. Please visit the Xumo Play Support Page to see the full list of compatible devices and other requirements for Xumo Play. Xumo Play may not be accessible from certain devices in some jurisdictions. You are solely responsible for obtaining all devices and software, internet, and mobile network connectivity, and other services needed for your access to and use of Xumo Play, and you will be solely responsible for all charges related to them. We are not responsible for the performance of devices you use to access Xumo Play, including, but not limited to, the ongoing compatibility of such devices with Xumo Play, and you agree to look solely to the entity that manufactured and/or sold or leased you the device for any issues related to it. In addition, some aspects of the display of available Content (for example, its resolution and the speed to initiate viewing) and other functionality may vary from device to device and may be affected by factors such as your location, the configuration of your device, and the speed of your internet or mobile connection. We make no representations or warranties about the quality of your viewing experience on your device or other display.
3. Content
1. Xumo Content. Xumo Play contains or references Content that may be owned by us as well as third parties. As between you and Xumo, Xumo owns all right, title, and interest in and to the copyrights, trademarks, service marks, trade names, and all other intellectual property and proprietary rights throughout the world associated with Xumo Play and its Content. Nothing herein will be deemed to convey to you any right, title, or interest in or to Xumo Play or its Content.
2. Content changes. Content on Xumo Play will change regularly, meaning new programs, channels, applications and Content will likely become available while other existing Content may stop being available. The availability of Content may change for various reasons, such as where the providers of third-party content withdraw or restrict our right to use that content on Xumo Play, or for legal or regulatory reasons.
3. Content Limitations. The availability of Content on Xumo Play may change from time to time and from place to place and may be edited, reformatted, or otherwise modified from the original version. Content types, ratings, reviews, genres, categories, and descriptions are provided as suggestions to help navigation. We do not guarantee that you will agree with these suggestions. You acknowledge that Content is inherently subjective, and Xumo Play may include Content that you find offensive, indecent, explicit, or otherwise objectionable (including, for example, if the Content contains outdated cultural references). You should not rely on the Content you view for advice, whether legal, medical, or otherwise. If you are susceptible to photosensitive epilepsy or other photosensitivities, please be aware that some Content may contain flashing lights or sequences of patterns.
4. Feedback. We have not agreed to, and do not agree to, treat as confidential any comments, information, ideas, concepts, reviews, techniques, or other material included in any communication you may send to us, including via responses to questionnaires and other methods (“Feedback”). We will be free to use, profit from, disclose, publish, or otherwise exploit any Feedback without compensation to you. Our receipt of your Feedback is not an admission by us of their novelty, priority, or originality and does not limit our right to contest intellectual property rights related to your Feedback.
  
  You hereby grant us a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sub-licensable through multiple tiers (including to other users of Xumo Play), transferable, non-exclusive license to use, reproduce, adapt, prepare derivative works based on, publicly display, publicly perform, distribute, incorporate in other works, and/or otherwise exploit, in whole or in part, Feedback (including your name, likeness and voice as it appears in that Feedback) in any manner and any media now known or hereafter developed, without further notice to you and without the requirement of compensation or additional permission from you or any other person or entity. You represent and warrant that you own all Feedback or are otherwise authorized to grant the license above. You agree that Xumo may give you attribution for your Feedback, but we are not required to do so. To the extent permitted by applicable law, you hereby waive and agree not to assert any “moral rights” or other proprietary rights in any Feedback against us, our licensees, our representatives, or other users.
5. Infringement Policy. We respect the intellectual property of others, and we ask our users to do the same. Xumo Play and its Content are protected by copyrights, patents, trade secrets, or other proprietary rights. Some of the characters, logos, or other images incorporated by us in Xumo Play are also protected as registered or unregistered copyrights, trademarks, trade names, and/or service marks owned by us or others.
  
  Our designated DMCA agent for notices of copyright infringement on Xumo Play is: DMCA Notifications re: Xumo Play, Comcast Cable Communications, LLC, 1800 Bishops Gate Boulevard, Mt. Laurel, NJ 08054, Phone: 877-842-2112, Email: dmca@comcast.net. The Comcast Digital Millennium Copyright Act (DMCA) Policy is available at https://www.xfinity.com/dmca.
4. Restrictions
1. Prohibited Actions. You may not attempt any of the actions set forth in this Section 4(a) or authorize, facilitate, or induce others to do so.
  1. You may not attempt to gain unauthorized access to computer systems or networks connected to Xumo Play.
  2. You may not threaten, abuse, harass, or invade the privacy of any third party. Furthermore, you may not interfere with any other user’s ability to use or enjoy Xumo Play.
  3. You may not use or encourage or facilitate others’ use of any portion of Xumo Play for any unlawful purpose or in violation of applicable law.
  4. You may not use Xumo Play in a manner that suggests an association with our products, services, or brands except as agreed by us in writing. You may not provide fictitious information or conceal your identity or location, including in an attempt to circumvent limits associated with geographic Content restrictions.
  5. You may not, either directly or through the use of any personal computer, browser, laptop, tablet, mobile phone, or other device or other means (i) remove, alter, bypass, avoid, interfere with, obstruct, decompile, reverse-engineer, disassemble, or circumvent any copyright, trademark, or other proprietary notices marked on Xumo Play or Content or any digital rights management mechanism, device, or other content protection or access control measure associated with Xumo Play or Content, or (ii) copy, download, stream, capture, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, frame, transmit, or retransmit Xumo Play or Content, or any part thereof or any materials derived therefrom, unless expressly permitted by us in writing.
  6. You may not knowingly or intentionally take any action that may impose an unreasonable burden or load on Xumo Play or its servers and infrastructure, or send unsolicited communications thereto. You are also prohibited from disabling, modifying, or interfering with Xumo Play to allow users to view Content without (i) displaying visibly both Content and all surrounding elements (including the graphical user interface, copyright notices, and trademarks), and (ii) having full access to all functionality permitting viewing of Content, including all video quality and display functionality and all interactive, elective, or click-through advertising functionality.
  7. You may not use any software or device that allows automated usage or expedited or other manipulation, and you agree not to modify Xumo Play to create a differential experience between users.
  8. You may not insert any code into Xumo Play or otherwise upload through any Xumo Play system a software virus or any other computer code or materials that may (i) disrupt, damage, or limit the functioning of Xumo Play or any computer software, hardware, or telecommunications equipment associated with Xumo Play, or (ii) enable or facilitate unauthorized access to Xumo Play or Content of ours or any third party.
  9. Except as expressly authorized in this Agreement, you may not incorporate Content into, or stream or retransmit the Content via, any hardware or software application or make Xumo Play or any Content available via frames or links, and you may not otherwise surround or obfuscate Xumo Play or Content with any third-party content, materials, or branding.
  10. You may not solicit or collect information about other users of Xumo Play or use any such information for (i) unauthorized or unsolicited advertising, junk, or bulk email, chain letters, or any other form of unauthorized solicitation, or (ii) any other commercial purposes.
  11. You may not access, search and/or collect data from, or attempt to access, search and/or collect data from, Xumo Play by any means (whether automated or manual) other than through our currently available, published interfaces that are made available to you by us, unless Xumo has given its express written authorization to do so. Without limiting the foregoing, (i) you may not use any robots, spiders, crawlers, devices, scripts, or other data gathering or extraction software and/or tools, whether automated or manual, to access, acquire, copy, monitor, scrape, data mine, or aggregate any Content or any portion of Xumo Play for any purpose, and (ii) you may not use any Content for the purpose of directly or indirectly training, developing, or improving a software tool or service, including any artificial intelligence tool, model, system, or platform.
  12. You may not build a business for commercial purposes, in whole or in part, resell, redistribute, or recirculate or make any other commercial use of, or create derivative works or materials utilizing, any portion of Xumo Play or Content, whether for profit or for no profit.
  13. Except as otherwise agreed between Xumo and you in writing, you may not use Xumo Play in any way (i) to advertise any commercial endeavor or otherwise engage in any commercial activity (for example, offering products or services, conducting raffles or contests, or displaying sponsorship banners), or (ii) that solicits funds, advertisers, or sponsors, whether for profit or for no profit.
2. Investigations and Monitoring. We may, but are under no obligation to, examine, record, copy, and disclose your use of Xumo Play including as necessary to satisfy any law, regulation, or governmental request. We reserve the right to take, or refrain from taking, any and all steps available to us, once we become aware of any violation of these provisions, including warning users, suspending users, terminating this Agreement, blocking access to Xumo Play, or taking other corrective action we deem appropriate.
3. Termination and Suspension.
You or we may terminate this Agreement for any reason or no reason.

We may suspend or terminate your access to Xumo Play for any or no reason, including a violation of this Agreement.

Termination, suspension, or cancellation of your access to Xumo Play (“Termination”) will not affect any right or relief to which we may be entitled, at law or in equity. Upon such Termination, all rights granted to you in this Agreement will automatically terminate and immediately revert to us. Following such Termination, this Agreement will remain in full force and effect with respect to your past use of Xumo Play, including all rights granted by you to us. Any provisions which survive Termination under Section 15(g) will continue in full force.
5. Third Parties
1. Third-Party Services. Xumo Play may provide links to third-party websites, widgets, software, services, or other utilities (each, a “Third-Party Service”). Third-Party Services are provided solely as a convenience to you, and we are not responsible for Third-Party Services. Our inclusion of a link to or other integration with a Third-Party Service does not imply an endorsement by or afﬁliation with us. Your rights and obligations while accessing those Third-Party Services will be governed by the agreements and policies relating to the use of, and made available by, those Third-Party Services. We are not responsible for any conﬁdential or personal information you provide in connection with any Third-Party Service or for loss or damage of any sort incurred as the result of any dealings with or as the result of the availability of such Third-Party Service on Xumo Play.
2. Third-Party Platform Providers. If you access or download Xumo Play via an Apple, Inc., Amazon.com, Inc., Google, Inc., or any other third-party app store or platform (each, a “Third-Party Platform Provider”), such Third-Party Platform Providers will be third-party beneﬁciaries to this Agreement. However, these Third-Party Platform Providers are not party to this Agreement and have no obligation to provide maintenance and/or support of Xumo Play. Your access to Xumo Play through the Third-Party Platform Provider’s app stores or platforms is subject to such Third-Party Platform Provider’s then-applicable agreement. You should read such agreements and privacy policies that apply to such Third-Party Platform Providers.
6. Modification

Xumo reserves the right to modify this Agreement, including the right to assign this Agreement, in whole or in part, to a third party, from time to time and will use reasonable efforts to provide notice to you of any modifications such as by posting on http://xumo.com/playterms or any other website about which you have been notified. You agree that this is sufficient and effective notice under this Agreement and that it is your responsibility to regularly check the website for modifications. Your continued access or use of Xumo Play after we post changes to this Agreement will be deemed acceptance of this Agreement as modiﬁed. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Customer service representatives are not authorized to modify this Agreement or any Supplemental Terms, either verbally or in writing, and any such modifications will have no effect. To the extent applicable law provides that a purported modification of the Agreement under this section is invalid, you and we will continue to be bound to the most recent version of the Agreement to which you validly consented.
7. Data Collection and Use
1. Xumo respects your privacy, and Xumo Play will not access computer files or other information on your Device, except for those that are necessary for downloading, installing, or using Xumo Play, or for which we otherwise obtain your consent. Xumo may collect information about your Device, such as operating system, software versions, amount of available disk space, peripherals, and internet connectivity, and information related to installation of Xumo Play, such as whether Xumo Play installed successfully on the first try. In addition, we may collect and use information about your use of Xumo Play as Comcast would any Comcast-branded products and services, as detailed in the Privacy Policy.
2. You can learn more about how we collect and use your personal information to provide Xumo Play in our Privacy Policy.

8. Open Source

Some elements of Xumo Play may contain open source software, as set forth at: https://xumo.com/opensourcenotice. To the extent there is any conflict between the terms of this Agreement and the terms of an open source software license, the terms of the open source software license will apply solely as to that open source software.

9. Disclaimer of Warranties

TO THE EXTENT PERMITTED BY LAW, XUMO PLAY IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER WE NOR ANY OF OUR PROVIDERS, AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS, OR BUSINESS PARTNERS (OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, OR REPRESENTATIVES) (COLLECTIVELY, THE “RELEASED ENTITIES”) WARRANT THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM, OR THAT XUMO PLAY WILL MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF PERFORMANCE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR LIABILITY FOR FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAYS IN OPERATION OR TRANSMISSION, COMMUNICATION-LINE FAILURE, OR NETWORK OR SYSTEM OUTAGE ARE HEREBY DISCLAIMED AND EXCLUDED, UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY APPLICABLE LAW.

10. Limitation of Liability

If you live anywhere except the UK or Ireland or access Xumo Play only outside such jurisdictions:

EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, WE AND THE RELEASED ENTITIES WILL HAVE NO LIABILITY TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, OR COSTS UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, TORT OR CONTRACT):
1. ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST DATA, LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES, OR DEATH) THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH SERVICES PROVIDED UNDER, OR IN CONNECTION WITH, THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, ANY MISTAKES, OMISSIONS, INTERRUPTIONS, HARDWARE OR SOFTWARE BREACH, FAILURES OR MALFUNCTIONS, DELETION OR CORRUPTION OF FILES, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, OR DELAYS IN TRANSMISSION); OR
2. ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, LEGAL FEES, OR OTHER COSTS THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING (i) BASED UPON A CONTENTION THAT OUR PROVISION OF XUMO PLAY TO, OR THE USE OF, OR INABILITY TO USE, XUMO PLAY BY YOU OR ANY OTHER PERSON OR ENTITY INFRINGES UPON THE CONTRACTUAL RIGHTS, PRIVACY, PUBLICITY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY OR (ii) OTHERWISE ARISING IN CONNECTION WITH THIS AGREEMENT.
  YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGE YOU INCUR ARISING OUT OF THE ACTS OR OMISSIONS OF THE RELEASED ENTITIES OR YOUR USE OF XUMO PLAY IS NOT IRREPARABLE AND IS INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF XUMO PLAY OR THE DISPLAY, PERFORMANCE, OR DISTRIBUTION OF ITS CONTENT.
  
  If you live in and access Xumo Play in the UK or Ireland:
  
  Unless caused by our negligence, our intent or own breach, we are not responsible for:

any use by you of Xumo Play which is not authorized by us under this Agreement;
any malfunction or interruption to Xumo Play solely due to circumstances outside of our control that prevent us from fulfilling our obligations to you, or that can be considered a “force majeure event” under local law (where applicable). This could be due to things such as: (i) lightning, flood, severe weather, fire, explosion, terrorist activities, epidemic, pandemic, riots, war, anything done by a government or other public authority, or strikes or other industrial action; or (ii) other actions of third parties we do not control;
any lack of functionality or failure to provide any part of Xumo Play, or any loss of content or data that is solely due to:
1. malfunctions or faults in your chosen equipment, operating system or internet connection (including malware, viruses or bugs originating from third parties or on any of your devices);
2. your failure to download or install any update or the most recent published version of Xumo Play that is required to maintain Xumo Play in conformity within a reasonable time in order to benefit from new or improved features and/or functionality where we have informed you about the update, explained the consequences of failing to install it and provided installation instructions;
3. your failure to download or install any update or the most recent published version of Xumo Play that is required to maintain Xumo Play in conformity within a reasonable time in order to meet any compatibility requirements where we have informed you about the update, explained the consequences of failing to install it and provided installation instructions; or
4. your internet connection not meeting the minimum bandwidth and/or speed requirements.
We will only be responsible for the loss or damage you suffer that is a foreseeable result of our breach of this Agreement or as a result of our negligence, however, we will not be responsible for any loss or damage that is not foreseeable (unless consumer laws applicable in your country of residence prohibit such restriction) or as a result of your negligence. Loss or damage is foreseeable if it was an obvious consequence of our breach of this Agreement or if it was contemplated by both of us at the time this Agreement began to apply to you.
These limitations do not exclude or limit our liability for death or personal injury to you caused by our negligence, our fraud or fraudulent misrepresentation to you, your rights as a consumer under applicable law, or any other liability that cannot be excluded or limited by applicable law.

11. One Year Limitation Period

YOU MUST COMMENCE ANY ACTION WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS UNDER THIS AGREEMENT OR IN CONNECTION WITH USE OF XUMO PLAY GIVING RISE TO A DISPUTE OR WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED ON SUCH EVENTS OR FACTS.

If you live in the UK or Ireland and are accessing Xumo Play outside the United States this Section 11 does not apply to you.

12. Binding Arbitration, and Class Collective/Representative Action/ Relief Waiver

If you live in the UK or Ireland and are accessing Xumo Play outside the United States this Section 12 does not apply to you.

Any Dispute involving you and us shall be resolved through individual arbitration as described in this Section 12 (the “Arbitration Provision”). In arbitration, there is no judge or jury, and there is less discovery and appellate review than in court.

Definitions. This Arbitration Provision shall be interpreted broadly. “Dispute” means any and all claims or controversies arising out of or related to us or any aspect of our relationship, including, but not limited to, any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims or controversies that arose before this Agreement or any prior agreement; (3) claims or controversies that arise after the expiration or termination of this Agreement; and (4) claims or controversies that are the subject of purported class, collective, or representative action litigation. As used in this Arbitration Provision, “us” and “we” means Xumo LLC and any of its parents, subsidiaries, and other affiliates, each of their respective predecessors, successors, and assigns, and each of their respective officers, directors, employees, and agents; and “you” means you and any users or beneficiaries of the services provided under this Agreement (the “Services”). Any terms defined in this Section 12 shall apply only with respect to their usage in this Section 12 and not with respect to those terms used in any other section of this Agreement.

Exclusions. NOTWITHSTANDING THE FOREGOING, THE FOLLOWING DISPUTES WILL NOT BE SUBJECT TO ARBITRATION: (i) DISPUTES RELATING TO THE SCOPE, VALIDITY, OR ENFORCEABILITY OF THIS ARBITRATION PROVISION; AND (ii) DISPUTES THAT ARISE BETWEEN US AND ANY STATE OR LOCAL REGULATORY AUTHORITY OR AGENCY THAT IS EMPOWERED BY FEDERAL, STATE, OR LOCAL LAW TO GRANT A FRANCHISE UNDER 47 U.S.C. § 522(9).

Right to Opt Out. IF YOU DO NOT WISH TO ARBITRATE DISPUTES, YOU MAY DECLINE TO HAVE YOUR DISPUTES WITH US ARBITRATED BY NOTIFYING US, WITHIN 30 DAYS OF YOUR FIRST USE OF XUMO PLAY, (i) BY VISITING WWW.XFINITY.COM/XUMOTVARBITRATIONOPTOUT AND COMPLETING THE FORM AT THAT URL, OR (ii) IN WRITING BY MAIL TO: XUMO, C/O COMCAST, 1701 JOHN F. KENNEDY BLVD., PHILADELPHIA, PA 19103-2838, ATTN: LEGAL DEPARTMENT/ARBITRATION. ANY SUCH WRITTEN NOTIFICATION TO US MUST INCLUDE YOUR (1) NAME, (2) EMAIL ADDRESS, (3) MAILING ADDRESS, (4) DATE WHEN YOU FIRST USED XUMO PLAY, AND (5) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES REGARDING XUMO PLAY WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH XUMO OR THE SERVICES PROVIDED BY XUMO.

Initiation of Arbitration Proceeding/Selection of Arbitrator.

Either you or we may initiate an arbitration proceeding by opening a case with the American Arbitration Association (“AAA”) by visiting its website (www.adr.org). You may deliver any required or desired notice to us by mail to: Xumo LLC, 1701 John F. Kennedy Boulevard, Philadelphia, PA 19103-2838 – ATTN: LEGAL DEPARTMENT/ARBITRATION.

Right to Sue in Small Claims Court. Notwithstanding anything in this Arbitration Provision to the contrary, if you are accessing Xumo Play in the United States, either you or we may elect to have a Dispute heard in a United States small claims court in the area where you use Xumo Play, if the claim(s) underlying the Dispute is not aggregated with the claim(s) of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.

Arbitration Procedures. Any arbitration under this Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by the AAA pursuant to the most recent version of its Consumer Arbitration Rules (the “AAA Rules”) as modified by the version of this Arbitration Provision that is in effect when you notify us about your Dispute. You can obtain the AAA Rules from the AAA by visiting its website (www.adr.org). If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the AAA Rules, this Arbitration Provision shall govern. If the AAA will not administer a proceeding under this Arbitration Provision as written, you and we shall agree on a substitute arbitration organization. If you and we cannot agree, you and we shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision, as written, applying the AAA Rules. A single arbitrator will resolve the Dispute. Unless you and we agree otherwise, any arbitration hearing will take place at a location convenient to you in the area where you use Xumo Play. If you no longer use Xumo Play when you notify us of your Dispute, then any arbitration hearing will take place at a location convenient to you in the county where you reside when you notify us of your Dispute, provided that we offer Xumo Play in that county, or in the area where you used Xumo Play at the time of the events giving rise to your Dispute. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.

Waiver of Class, Collective, and Representative Actions/Relief. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED (I) ON A CLASS ACTION, COLLECTIVE ACTION, OR OTHER JOINT OR CONSOLIDATED BASIS, OR (II) ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER USERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM, AND THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST OR ON BEHALF OF ANYONE WHO IS NOT A PARTY. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS, COLLECTIVE, OTHER JOINT OR CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. THIS WAIVER OF CLASS, COLLECTIVE, OTHER JOINT OR CONSOLIDATED, OR REPRESENTATIVE ACTIONS AND RELIEF IS AN ESSENTIAL PART OF THIS ARBITRATION PROVISION AND CANNOT BE SEVERED FROM IT. THE REMAINING PORTIONS OF THIS ARBITRATION PROVISION ARE NOT ESSENTIAL PARTS OF THIS ARBITRATION PROVISION AND CAN BE SEVERED FROM IT BY A COURT OF COMPETENT JURISDICTION.

Arbitral Fees and Costs. If the Arbitrator finds that the costs and fees of an Arbitration you initiate will be prohibitive for you as compared to the costs of litigation, we will pay as much of your filing, arbitrator, and hearing fees in the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost prohibitive, regardless of the outcome of the arbitration. However, if the arbitrator finds that your Dispute was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), you shall reimburse us for any fees and costs that were advanced by us on your behalf. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys’ fees and additional costs. You may only recover your attorneys’ fees and costs in the arbitration if (i) the arbitration is decided in your favor and to the extent that you could have recovered those fees in court in accordance with the law or statute(s) that apply to the case or (ii) the arbitrator finds that any Dispute we bring against you was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Notwithstanding anything in this Arbitration Provision to the contrary, we will pay all fees and costs that we are required by law to pay.

Survival. This Arbitration Provision shall survive the termination of your use of Xumo Play with us.

13. Waiver of Jury Trial

WHETHER ANY DISPUTE IS RESOLVED IN COURT OR IN ARBITRATION, YOU AND WE AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY IN RELATION TO THE DISPUTE.

If you live in the UK or Ireland and are accessing Xumo Play outside the United States this Section 13 does not apply to you.

14. Indemnification

YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US AND EACH RELEASED ENTITY HARMLESS FROM AND AGAINST ANY DAMAGES, LOSSES, OR EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COSTS) INCURRED IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS, AND CAUSES OF ACTION ARISING OUT OF (a) YOUR USE OF XUMO PLAY; (b) YOUR ACTUAL OR ALLEGED VIOLATION OF APPLICABLE LAW; AND (c) YOUR BREACH OF THIS AGREEMENT OR ANY APPLICABLE POLICIES. YOUR INDEMNIFICATION OBLIGATIONS WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.

If you live in the UK or Ireland and are accessing Xumo Play from outside the United States this Section 14 does not apply to you.

15. Additional Terms
1. Notice: You can contact us by sending a notice via certified or registered mail to Xumo, c/o Comcast, 1701 John F. Kennedy Blvd., Philadelphia, PA 19103-2838, ATTN: Legal Department, with a copy to support@xumo.com for any issues or questions you may have regarding Xumo Play. Any notice sent via certified or registered mail will be deemed given on receipt by Xumo.
2. No Waiver. No failure or delay by us in exercising any rights under this Agreement will constitute as a waiver of that right by Xumo.Additionally, no single or partial exercise of any right preclude any further exercise of such right.
3. Severability. Unless otherwise expressly provided herein, the invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision, all of which will remain in full force and effect.
4. Entire Agreement; Severability. To the maximum extent permitted by applicable law, this Agreement constitutes the entire legal agreement between you and us for your access to and use of Xumo Play, and completely replaces any prior agreements in relation to Xumo Play. To the maximum extent permitted by applicable law, no other written or verbal agreements between us have any legal force or effect. If any part of this Agreement is found invalid or unenforceable, that part will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, if permitted by applicable law. The remainder of the Agreement shall be considered severable and shall not be affected by such determination, and the rights and obligations of the Parties will remain in effect. Neither the course of conduct between us, nor trade practice, can modify this Agreement, except as required under this section to construe the meaning of the Agreement upon a portion of the Agreement being found to be invalid or unenforceable. The paragraph or section titles in this Agreement are for convenience only and have no legal or contractual effect.
5. Assignment. This Agreement is binding upon and will inure to the benefit of the parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You agree that we can transfer our rights and obligations under this Agreement to any other companies in the same group as Xumo or to any other company or firm or person provided that your rights under this Agreement will not be adversely affected as a result of such transfer. You will not assign your rights or obligations hereunder without our prior written consent, and any assignment without our consent will be void and invalid at the outset.
6. Notices. You consent to receive notices, including agreements, disclosures, and other communications, electronically from us in the form of updates to the Xumo Play website at https://play.xumo.com, including on the Xumo Play Terms of Service page available at https://www.xumo.com/playterms, or within the Xumo Play app. To the extent permitted by applicable law, you agree that these electronic notices satisfy any legal requirements that such communications be in writing.
7. Survival. The provisions of this Agreement which by their nature should survive the termination of this Agreement will survive such termination, along with Sections 3(d), 4 and 6 through 15, as applicable.
8. Third Party Rights: This Agreement is between you and us. Nothing in this Agreement is intended to provide third parties with any rights to enforce its terms unless explicitly stated to create a “third-party beneficiary.”
9. Support. If you have an issue with Xumo Play, please email your concern to support@xumo.com.
16. Right of Withdrawal

If you are a resident in the UK or Ireland and access Xumo Play from one of those jurisdictions, you have a statutory right to withdraw from this Agreement within 14 days of entering into it. Instructions on how to exercise this right, the consequences of exercising this right and a model form that you can use are set out at the end of this Agreement in Appendix 1.
17. Governing Law and Jurisdiction
1. If you live in the United Kingdom and access Xumo Play from outside the United States, this Agreement shall be governed by and construed in accordance with the laws of England and Wales.
2. If you live in Ireland and access Xumo Play from outside the United States, this Agreement shall be governed by and construed in accordance with the laws of Ireland.

Appendix 1

Appendix 1: Withdrawal Rights (UK and Ireland only)

Instructions on withdrawal:

Right of withdrawal

You have the right to withdraw from this contract within 14 days, without giving any reason.

The withdrawal period will expire after 14 days from the day of conclusion of the contract.

To exercise the right of withdrawal, you must inform Xumo LLC, c/o Comcast, 1701 John F. Kennedy Blvd., Philadelphia, PA 19103-2838, Attn: Legal Department/Withdrawal and email support@xumo.com of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post or email). You may use the attached model withdrawal form, but it is not obligatory.

To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.

Effects of withdrawal

If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.

If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.

Model Withdrawal Form:

(Complete and return this form only if you wish to withdraw from the contract).

— To

Xumo LLC, c/o Comcast, 1701 John F. Kennedy Blvd., Philadelphia, PA 19103-2838, Attn: Legal Department/Withdrawal and email support@xumo.com — I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract for the provision of the following service: [insert name of service and subscription type]

— Ordered on (*)/received on (*)

— Name of consumer(s)

— Address of consumer(s)

— Signature of consumer(s) (only if this form is notified on paper)

— Date

____________

(*) delete as appropriate

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