Terms of Service

Xmarks, Inc. ("Xmarks" or "we" or "us") welcomes you to the Xmarks Add-on and Website (the "Service").

Xmarks provides services that allow you to back up, synchronize, and remotely access your bookmarks and (on some platforms) your passwords ("Synchronization"). We also provide services to help you find what you're looking for more easily on the web ("Search and Discovery"). We provide these services through a combination of software that you install and features that you access through our website.We ask that you read these Terms of Service (the "Terms"), because, by using this Service, you agree to comply with and be legally bound by these Terms. If you do not agree to these Terms, please do not use the Service. We may change these Terms at any time and our changes are effective when posted on this page. If we make material changes to the Terms, we will post a message on our blog detailing those changes. What constitutes a "material change" will be determined at our sole discretion, in good faith and using common sense and reasonable judgment. By continuing to use the Service, you agree to be legally bound by the new Terms.

Using the Service

The Service is made available for your personal, non-commercial use. "Personal, non-commercial use" includes installing an Xmarks Add-on on your work computer, or using the Service to do research for your job. It does not include reselling or repurposing any Xmarks product, service, or data. If you are unclear about whether your use is acceptable under these terms, please contact us at support@xmarks.com.

We are pleased to make the Service available to you, but we reserve the right to terminate or suspend the Service (or your use of the Service) at any time without notice and without liability in our sole discretion. Upon termination, you continue to be bound by this Agreement. You may use the Service to help you to synchronize your bookmarks or to find other websites, but you are solely responsible for your selection of those bookmarks and websites. You are also responsible for your use of the Service, and your actions in relation to those websites.

You do not have to register in order to use the Service. To access certain features of the Service, though, such as synchronizing your bookmarks, you will need to register with Xmarks to create a Web Account. Your account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. If you open an account on behalf of a company, organization, or other entity, then (a) "you" includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.

You may never use someone else’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Xmarks of any breach of security or unauthorized use of your account immediately after you become aware of it. Xmarks will not be liable for any losses caused by any unauthorized use of your account.

You may control your account and how you interact with the Service by changing the settings in your My Account page; some additional settings specific to the Add-ons are available via the Settings page within the Add-on.

By providing Xmarks your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out by changing your preferences in your My Account page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.

You agree NOT to engage in the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated "scraping"; (ii) using any automated system, including without limitation "robots," "spiders," "offline readers," etc., to access the Service in a manner that sends more request messages to the Xmarks servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Xmarks grants the operators of public search engines revocable permission to use spiders to copy materials from xmarks.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein. You are allowed to (a) take screenshots of the Service and (b) cache the Service for purposes of improving performance or archiving.

All aspects of the Service are subject to change or elimination at Xmarks's sole discretion. Xmarks reserves the right to interrupt the Service with or without prior notice. You agree that Xmarks will not be liable to you for any interruption of the Service, delay or failure to perform.

You are solely responsible for your interactions with other Xmarks Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Xmarks shall have no liability for your interactions with other Users, or for any User’s action or inaction.

Privacy

We care about the privacy of our users. Information that we receive from you will be subject to our Privacy Policy. We may post updates to this policy from time to time and those updates are effective when posted. In order to manage, administer and provide the service, or as required by law or order, we may access files and data provided by you for use in the Service. By using the Service, you are consenting to have your personal data transferred to and processed in the United States.

Security

We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

Copyright and Software License

The software comprising the Xmarks Add-ons is copyright Xmarks 2009. The content we originate on Xmarks.com or SearchTabs.com ("Our Website") is also copyright Xmarks 2009. Xmarks grants you a non-transferable, non-exclusive, non-sublicensable, royalty-free and fully paid, worldwide right and license to reproduce (solely to install and execute) the Xmarks Add-ons, in the form provided only, for your personal, non-commercial use only, subject to the terms and conditions of these Terms. You are permitted to download the Xmarks Add-ons on as many computers and as many times as you like, provided that you agree to these Terms each time you download or install the Xmarks Add-on.

Intellectual Property

Our trademarks include Xmarks, the Xmarks logo and design, Foxmarks, and the Foxmarks logo and design. They may not be used without our express written permission. We reserve title and our other rights in these trademarks and in our other intellectual property available on Our Website and in the Xmarks Add-ons.

User Content

Some areas of the Service may allow Users to post feedback, comments, questions, reviews, and other information ("User Content"). You are solely responsible for your User Content that you upload, publish, display, link to or otherwise make available (hereinafter, "post") on the Service, and you agree that we are only acting as a passive conduit for the online distribution and publication of your User Content. You understand that whether or not such User Content is published, Xmarks does not guarantee any confidentiality with respect to any User Content.

You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below), rights of publicity and privacy. Xmarks reserves the right, but is not obligated, to reject and/or remove any User Content that Xmarks believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.

For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

Xmarks takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts on the Service. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you post is solely your responsibility. Xmarks is not responsible for any public display or misuse of your User Content. You understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, objectionable, or inappropriate for children, and you agree that Xmarks shall not be liable for any damages you allege to incur as a result of such User Content.

License Grant

You retain all your ownership rights in your User Content. By posting any User Content on the Service, you expressly grant, and you represent and warrant that you have a right to grant, to Xmarks a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Xmarks’ (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement.

You understand and agree that Xmarks is permitted to make use of data aggregated from any bookmarks you synchronize using the Service. For example, Xmarks may use the aggregate data to provide users with a list of the most popular sites within a given topic area. If you do not wish your bookmarks to be aggregated in this fashion, you may opt-out by visiting your My Account page.

Additional Representations and Warranties

You shall be solely responsible for your own User Content and the consequences of posting or publishing it. In connection with your User Content, you affirm, represent and warrant, in addition to the other representations and warranties in this Agreement, the following:

  1. You are at least 18 years of age, or if you are under 18 years of age you are either an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
  2. You have the written consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
  3. Your User Content and Xmarks' use thereof as contemplated by this Agreement and the Service will not infringe any rights of any third party, including but not limited to any Intellectual Property Rights, privacy rights and rights of publicity.
  4. Xmarks may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.

Our Proprietary Rights

Except for your own User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content (the "Xmarks Content"), and all Intellectual Property Rights related thereto, are the exclusive property of Xmarks and its licensors. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. Use of the Xmarks Content or materials on the Service for any purpose not expressly permitted by these Terms is strictly prohibited.

You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products ("Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Xmarks under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Xmarks does not waive any rights to use similar or related ideas previously known to Xmarks, or developed by its employees, or obtained from sources other than you.

DMCA Notice

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Xmarks' copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 ("DMCA"). For your complaint to be valid under the DMCA, you must provide the following information in writing:

  1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
  2. Identification of the copyrighted work that you claim has been infringed;
  3. Identification of the material that is claimed to be infringing and where it is located on the Service;
  4. Information reasonably sufficient to permit Xmarks to contact you, such as your address, telephone number, and, e-mail address;
  5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
  6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

The above information must be submitted to the following DMCA Agent:

Attn: DMCA Notice
Xmarks, Inc.
Address: 226 Maple Ave W Suite 301
Vienna, VA 22180
 
Telephone:  703-542-1885
Email: copyright@xmarks.com

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.

Please note that this procedure is exclusively for notifying Xmarks and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Xmarks' rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

In accordance with the DMCA and other applicable law, Xmarks has adopted a policy of terminating, in appropriate circumstances and at Xmarks' sole discretion, members who are deemed to be repeat infringers. Xmarks may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

Third-Party Links

Xmarks is not affiliated with, has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites or services. If you access a third party website from the Service, whether through your bookmarks, through any of the Xmarks Search and Discovery features, or through any other means, you do so at your own risk, and you understand that this Agreement and Xmarks’ Privacy Policy do not apply to your use of such sites. You expressly relieve Xmarks from any and all liability arising from your use of any third-party website or services or third party owned content. Additionally, your dealings with or participation in promotions of advertisers found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Xmarks shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

We encourage you to be aware of when you leave the Service, and to read the terms and conditions and privacy policy of any third-party website or service that you visit. Indemnity

You agree to defend, indemnify and hold harmless Xmarks and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (iv) your violation of any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any of your User Content or any that is submitted via your account; or (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code.

No Warranty

THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, XMARKS, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.

XMARKS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE XMARKS SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND XMARKS WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

The Service is provided "AS-IS" without warranty of any kind. Xmarks specifically disclaims any implied warranties of merchantability, fitness for a particular purpose, non-infringement, or the absence or presence of latent or other defects or errors. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL XMARKS, ITS AFFILIATES, DIRECTORS, EMPLOYEES OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL XMARKS BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, XMARKS ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL XMARKS, ITS AFFILIATES, DIRECTORS, EMPLOYEES, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO XMARKS HEREUNDER.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF XMARKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

The Service is controlled and operated from its facilities in the United States. Xmarks makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.In no event will Xmarks or any of its employees, directors or officers be liable to you for any damages of any kind arising from the provision or failure to provide the Service or otherwise relating to the subject matter of the Terms, including, without limitation, any direct, special, punitive, exemplary, consequential or other indirect damages of any kind, whether any such claim for damages is based on warranty, contract, tort (including negligence), or otherwise, even if Xmarks has been advised of the possibility of such damages. Certain states and/or jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.

Protection of Children

This Service is intended solely for Users who are thirteen (13) years of age or older, and any registration, use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. If you are under 18 years of age you may use the Service only if you either are an emancipated minor or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.

Other

  1. Governing Law. You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Xmarks, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any claim or dispute between you and Xmarks that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in Santa Clara County, California, unless submitted to arbitration as set forth in the following paragraph.
  2. Arbitration. For any claim (excluding claims for injunctive or other equitable relief) under this Agreement where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. The party electing such arbitration shall initiate the arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, as selected by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
  3. Notification Procedures. Xmarks may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our website, as determined by Xmarks in our sole discretion. Xmarks reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement.
  4. Entire Agreement/Severability. This Agreement, together with any other legal notices and agreements published by Xmarks via the Service, shall constitute the entire agreement between you and Xmarks concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
  5. No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Xmarks' failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
  6. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Xmarks without restriction.
  7. Relationship. The Terms constitute the entire agreement between you and Xmarks regarding the Service, and supersede any prior agreements. You and Xmarks are independent entities, and nothing in these terms creates any partnership, joint venture, agency, franchise, sales representative or employment relationship. In the event that any provision of these Terms is held by a court to be unenforceable, the remaining Terms will continue in full force and effect. The Terms will be governed by the laws of the State of California, excluding its choice of law rules.

Effective Date: September 24, 2009