Be sure to return to this page periodically to review the most current version of the TOU. We reserve the right at any time, at our sole discretion, to change or otherwise modify the TOU without prior notice, and your continued access or use of this App signifies your acceptance of the updated or modified TOU.
1. Description of App Services
Through the App, XOKind provides users with tools for travel and leisure discovery, planning and booking (the “Services”) accessible through user’s mobile device.
This App can only by used by North American residents who are over the age of 18 and have the requisite power and authority to enter into and perform the obligations under these TOU, and are not barred from receiving our Services under the laws of the United States or other applicable jurisdiction.
3. App Access
XOKind grants you a limited license to access and make personal use of the App and the Services. This license does not include any downloading or copying of account information for the benefit of another vendor or any other third party; caching, unauthorized hypertext links to the App and the framing of any content available through the App; uploading, posting, or transmitting any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; any action that imposes or may impose (in XOKind’s sole discretion) an unreasonable or disproportionately large load on XOKind’s infrastructure; or any use of data mining, robots, scrapers, or similar data gathering and extraction tools. You may not bypass any measures used by XOKind to prevent or restrict access to the App. Any unauthorized use by you shall terminate the permission or license granted to you by XOKind.
5. Prohibited Activities
By using the App you agree not to: (i) use this App or its contents for any commercial purpose; (ii) make any speculative, false, or fraudulent reservation or any reservation in anticipation of demand; (iii) access, monitor or copy any content or information of this App using any robot, spider, scraper or other automated means or any manual process for any purpose without our express written permission; (iv) violate the restrictions in any robot exclusion headers on this App or bypass or circumvent other measures employed to prevent or limit access to this App; (v) take any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure; (vi) deep-link to any portion of this App (including, without limitation, the purchase path for any travel services) for any purpose without our express written permission; or (vii) “frame”, “mirror” or otherwise incorporate any part of this App into any other App without our prior written authorization.
You may not copy (except as permitted by these TOU), reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the App).
You may not transfer, redistribute, or sublicense the App. You may not use or otherwise export, or re-export, the App except as authorized by United States law and the laws of the jurisdiction in which you obtained the App. In particular, but without limitations, the App may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the App, you represent and warrant that you are not located in any such country or on any such list.
6. Information Provided by You
7. Disclaimer of Liability and Warranty
THE CONTENT, PRODUCTS, AND SERVICES PUBLISHED ON THIS APP MAY INCLUDE INACCURACIES OR ERRORS, INCLUDING PRICING ERRORS. WE DO NOT GUARANTEE THE ACCURACY OF, AND DISCLAIM ALL LIABILITY FOR ANY ERRORS OR OTHER INACCURACIES RELATING TO THE INFORMATION AND DESCRIPTION OF THE CONTENT, PRODUCTS, AND SERVICES. WE EXPRESSLY RESERVE THE RIGHT TO CORRECT ANY PRICING ERRORS IN THE APP AND/OR ON PENDING RESERVATIONS MADE UNDER AN INCORRECT PRICE.
XOKIND MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES CONTAINED, OR LINKED TO, IN THIS APP FOR ANY PURPOSE, AND THE INCLUSION OR OFFERING OF ANY PRODUCTS OR SERVICES ON THIS APP DOES NOT CONSTITUTE ANY ENDORSEMENT OR RECOMMENDATION OF SUCH PRODUCTS OR SERVICES. ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. XOKIND AND THEIR RESPECTIVE SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS THAT THIS APP, ITS SERVERS OR ANY EMAIL SENT FROM XOKIND, ITS AFFILIATES, AND/OR THEIR RESPECTIVE SUPPLIERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. XOKIND, ITS AFFILIATES, AND THEIR RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.
THE SUPPLIERS PROVIDING TRAVEL OR OTHER SERVICES SOLD OR OFFERED THROUGH THIS APP ARE INDEPENDENT CONTRACTORS AND NOT AGENTS OR EMPLOYEES OF XOKIND OR ITS AFFILIATES. XOKIND AND ITS AFFILIATES ARE NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY SUCH SUPPLIERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM XOKIND AND ITS AFFILIATES HAVE NO LIABILITY AND WILL MAKE NO REFUND IN THE EVENT OF ANY DELAY, CANCELLATION, OVERBOOKING, STRIKE, FORCE MAJEURE OR OTHER CAUSES BEYOND THEIR DIRECT CONTROL, AND THEY HAVE NO RESPONSIBILITY FOR ANY ADDITIONAL EXPENSE, OMISSIONS, DELAYS, RE-ROUTING OR ACTS OF ANY GOVERNMENT OR AUTHORITY.
IN NO EVENT SHALL XOKIND, ITS AFFILIATES, AND/OR THEIR RESPECTIVE SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, YOUR ACCESS TO, DISPLAY OF OR USE OF THIS APP OR WITH THE DELAY OR INABILITY TO ACCESS, DISPLAY OR USE THIS APP (INCLUDING, BUT NOT LIMITED TO, YOUR RELIANCE UPON OPINIONS APPEARING IN THIS APP; ANY COMPUTER VIRUSES, INFORMATION, SOFTWARE, LINKED APPS, PRODUCTS, AND SERVICES OBTAINED THROUGH THIS APP; OR OTHERWISE ARISING OUT OF THE ACCESS TO, DISPLAY OF OR USE OF THIS APP) WHETHER BASED ON A THEORY OF NEGLIGENCE, CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF XOKIND, ITS AFFILIATES AND/OR THEIR RESPECTIVE SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT XOKIND AND ITS, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF XOKIND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM USE OF THE APP, CONTENT OR ANY RELATED SERVICES.
If, despite the limitation above, XOKind or their respective suppliers are found liable for any loss or damage which arises out of or in any way connected with any of the occurrences described above, then the liability of XOKind and/or their respective suppliers will in no event exceed, in the aggregate, the greater of (a) the service fees you paid to XOKind in connection with such transaction(s) on this App, or (b) One-Hundred Dollars (US$100.00) or the equivalent in local currency.
The limitation of liability reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed its essential purpose. The limitations of liability provided in these terms inure to the benefit of XOKind and/or its respective suppliers.
You agree to indemnify and hold XOKind (and its officers, directors, agents, subsidiaries, joint ventures, and employees) harmless from any and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature, including reasonable attorneys’ fees, or arising out of or related to your breach of this TOU, your violation of any law or the rights of a third party, or your use of the App.
When you use the App or send emails to XOKind, you are communicating with XOKind electronically. You consent to receive communications from XOKind electronically. XOKind may communicate with you by email or by posting notices on the App. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
XOKind may also communicate via SMS text messaging with users who opt-in to receiving SMS text messages from us. User certifies that they are the subscriber of all telephone numbers they have provided to XOKind. Standard rates and fees may apply from your telephone provider. You are not required to provide consent to receiving SMS text messages as a condition of receiving any service from XOKind, and have the right to revoke consent for any and all telephone numbers provided at any time. You may revoke that consent either by e-mailing us at hello@XOKind.com, or otherwise providing written notice to us at our address provided herein.
The App and/or third parties may provide links on the World Wide Web or various resources. Because XOKind has no control over such websites and resources, you acknowledge and agree that XOKind is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such websites or resources. You further acknowledge and agree that XOKind shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such websites or resource.
XOKind’s trademarks are important corporate assets and XOKind requires they are used properly. To preserve its reputation and protect its trademarks, XOKind diligently guards against any violation of its trademarks. XOKind acknowledges the desire of third parties to show affiliation with XOKind. Without written permission from XOKind, you should not use XOKind’s trademarks, service marks, or names in a manner suggesting any affiliation or association with XOKind. Only parties with written permission from XOKind are allowed to use XOKind’s trademarks in accordance with applicable terms.
XOKind trademarks take on various forms and may include letters, words, logos, designs, images, slogans, and colors associated with our company, App, and service offerings.
Certain activities may constitute infringement or dilution of XOKind’s trademarks, and are not permitted. Please review the following list of ways to avoid unauthorized use of XOKind’s trademark(s):
Do not use an XOKind trademark or name in a manner likely to cause confusion about the origin of any product, service, material, course, technology, program or other offerings.
Unless you have prior permission from XOKind, do not use an XOKind trademark or name in a manner likely to give the impression or otherwise imply an affiliation or association between you, your products or services, and XOKind, or any of its products, services, programs, materials, or other offerings.
Do not use the XOKind logo in any materials without the written permission of XOKind.
Do not use any XOKind trademarks as or as part of a company, product, service, solution, technology, or program name.
Do not use a XOKind trademark in a manner likely to dilute, defame, disparage, or harm the reputation of XOKind.
Do not use any trademark or designation confusingly similar to the XOKind name or any XOKind trademarks.
Do not copy or imitate any XOKind trade dress, type style, logo, product packaging, or the look, design, or overall commercial impression of any XOKind App, blog, or other materials.
Do not register or use any domain name which incorporates any XOKind mark or name.
Do not register, or seek to register, an XOKind trademark or any mark or name confusingly similar to an XOKind mark.
14. User-Contributed Content
We may, in our sole discretion, permit users to post, upload, publish, submit or transmit content through the App (referred to herein as “user-contributed content"). By posting or otherwise submitting any user-contributed content on or through the App, you hereby grant to XOKind a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such user-contributed content on, through, or by means of the App or otherwise. XOKind does not claim any ownership rights in any such user-contributed content and nothing in these TOU will be deemed to restrict any rights that you may have to use and exploit any such user-contributed content.
You acknowledge and agree that you are solely responsible for all user-contributed content that you make available through the App, and XOKind takes no responsibility for that content. Accordingly, you represent and warrant that:
you either are the sole and exclusive owner of all user-contributed content that you make available through the App, or you have all rights, licenses, consents and releases that are necessary to grant to XOKind the rights in such user-contributed content as contemplated under these TOU; and
your posting, uploading, publication, submission or transmittal of the user-contributed content on, through or by means of the App does not infringe, misappropriate or violate any third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, rights of publicity or privacy, or violate any applicable laws or regulations.
By submitting a photograph to XOKind, user represents and warrants: (a) that any people in the photograph have given permission for their likeness to be displayed pursuant to these TOU, (b) that the photograph accurately and fairly represents the subject of the photograph and has not been altered in any manner that would mislead a viewer of that photograph, and (c) that user will indemnify and hold harmless XOKind from any cause of action arising from any misrepresentation with respect to any and all photographs user has submitted.
Users may not post or submit any content that:
makes use of offensive language or images;
exploits images or the likeness of individuals under 18 years of age;
contains nudity or sexually explicit content;
depicts use of illicit drugs;
may disparage any ethnic, racial, sexual or religious group by stereotypical depiction or otherwise; or
provides a link to any commercial websites.
b. No Obligation to Post Content
We have no obligation to post any content from you or anyone else. In addition, we may, in our sole and unfettered discretion, edit, remove or delete any content that you post or submit.
15. Procedure for Claims of Intellectual Property Infringement
XOKind respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide XOKind’s Copyright Agent the following information:
(i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (ii) a description of the copyrighted work or other intellectual property that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the App; (iv) your address, telephone number, and email address; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; or (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
XOKind’s agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:
XOKind, Inc. ATTN: Arjun Bansal
Attn: Copyright Compliance
4445 Eastgate Mall, Ste. 200
San Diego CA, 92121
16. Terms for iOS App
These TOU apply to your use of all the Services, including the iOS versions of the App (the “iOS App”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the iOS App:
Both you and XOKind acknowledge that the TOU are concluded between you and XOKind only, and not with Apple, and that Apple is not responsible for the iOS App or any associated content;
The iOS App is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these TOU as they are applicable to the Services;
You will only use the iOS App in connection with an Apple device that you own or control;
You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS App;
In the event of any failure of the iOS App to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the iOS App;
You acknowledge and agree that XOKind, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the iOS App;
You acknowledge and agree that, in the event of any third-party claim that the iOS App or your possession and use of the iOS App infringes that third party’s intellectual property rights, XOKind, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
Both you and XOKind acknowledge and agree that, in your use of the iOS App, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
Both you and XOKind acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these TOU, and that upon your acceptance of these TOU, Apple will have the right (and will be deemed to have accepted the right) to enforce these TOU against you as the third-party beneficiary hereof.
17. Severability and Survivability
If any provision, or portion of a provision, in these TOU shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions. The parties agree to substitute for such provision a valid provision which most closely approximates the intent and economic effect of such severed provision.
Notwithstanding any other provisions of these TOU, or any general legal principles to the contrary, any provision of these TOU that imposes or contemplates continuing obligations on a party will survive the expiration or termination of these TOU.
18. Disputes: Binding Arbitration, Governing Law, Jurisdiction, etc.
These TOU and the relationship between you and XOKind will be governed by the laws of the State of California without regard to its conflict of law provisions.
User and XOKind agree to submit to the personal jurisdiction of the federal and state courts located in San Diego County, California with respect to any legal proceedings that may arise in connection with, or relate to, our Binding Arbitration clause and/or a Dispute. User and XOKind agree the exclusive venue for any and all legal proceedings that may arise in connection with, or relate to, our Binding Arbitration clause and/or a Dispute, shall be the federal and state courts located in San Diego County, California and to irrevocably submit to the jurisdiction of any such court in any such action, suit or proceeding and hereby agrees not to assert, by way of motion, as a defense or otherwise, in any such action, suit or proceeding, any claim that (i) he, she or it is not subject personally to the jurisdiction of such court, (ii) the venue is improper, or (iii) this agreement or the subject matter hereof may not be enforced in or by such court. YOU RECOGNIZE, BY AGREEING TO THESE TERMS AND CONDITIONS, YOU AND XOKIND ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION WITH RESPECT TO THE CLAIMS COVERED BY THIS MANDATORY BINDING ARBITRATION PROVISION.
19. Attorney’s Fees, Costs, and Expenses of Suit
20. Waiver, Etc.
No delay or failure by either party to exercise or enforce at any time any right or provision hereof will be considered a waiver thereof of such party's rights thereafter to exercise or enforce each and every right and provision hereof. No single waiver will constitute a continuing or subsequent waiver. XOKind does not guarantee it will take action against all breaches of these TOU. No waiver, modification or amendment of any provision hereof will be effective unless it is in a writing signed by both the parties.
Last updated: April 29, 2020
Categories of Personal Information We May Collect
When you use our Services, we may collect the following kinds of Personal Information from you as needed:
Contact info, such as:
telephone number, and
home, business, and billing addressees
Government issued identification required for booking or identity verification, such as passport, or driver’s license information
Payment information such as payment card number, expiration date, and billing address
Travel-related preferences and requests, including:
preferences and favorite accommodations, flights, and/or activities etc.
special dietary requirements
Geolocation (if user opts in)
Information we receive about you from third parties such as our business and affiliate partners and authorized service providers which may include updated contact information, demographic information, interests, and purchase history, which we may add to your account or profile and use for market research and analysis
Social media account ID and other publicly available information (we also may request you share of with us social media links, likes, and posts, but doing so will be specifically requested and sharing will require your consent)
Communications with us (such as recordings of calls with customer service representatives for quality assurance and training purposes)
Searches you conduct, transactions, and other interactions with you through our Services
Data you give us about other people, such as your travel companions or others for whom you are making a booking
We may use various technologies to collect Non-Personal Information about your access to our Services including:
1. Server Statistics. We may collect general statistics to track user trends on our Services. These statistics include hits to our server, the types of browsers used to access the Site, page views, and navigational patterns. The information that is collected in this manner does not provide us with any personally identifiable information about our users. It helps us track “where” our users are coming from. This allows us to pinpoint high traffic areas and determine the most effective ways to communicate with our users. In order to prevent the introduction of viruses and hackers into the Site, we may collect information, such as IP addresses, into a log file to be used to identify potential hackers of the Site.
2. Clear GIFs. We may use pixel tags (also called clear gifs) or other similar tracking technologies collect information about your navigation on our Services, and to enable us to know whether you have visited a web page or received a message. This information enables us to serve you and your interests better.
3. Cookies. To serve you faster and with better quality, we use "cookie" technology. Cookies are small pieces of text sent as files to your computer or mobile device when you visit most websites. Cookies may be delivered by us (first party cookies) or delivered by third-party suppliers (third-party cookies). Cookies are either session cookies or persistent cookies. Session cookies enable sites to recognize and link the actions of a user during a browsing session and expire at the end of each session. Persistent cookies help us recognize you as an existing user and these cookies are stored on your system or device until they expire, although you can delete them before the expiration date.
Cookies may be used to:
Determine which domain to measure
Distinguish unique users
Throttle the request rate
Remember the number and time of previous visits
Remember traffic source information
Determine the start and end of a session
Remember the value of visitor-level custom variables
XOKind’s Mobile Application
General device information, such as model, OS, brand, and orientation
RAM and disk size
Carrier (based on Mobile Country and Network Code)
Radio/Network information (for example, WiFi, LTE, 3G)
Country (based on IP address)
Jailbroken or rooted status of device
Battery level and battery-charging state
App foreground or background state
App package name
A pseudonymous app-instance identifier
Network URLs (not including URL parameters or payload content) and the following corresponding information:
Response codes (for example, 403, 200)
Payload size in bytes
Duration times for automated traces.
Permissions for Location-Based Services
Depending on your device’s settings and permissions and your choice to participate in certain programs, we may collect the location of your device by using GPS signals, cell phone towers, Wi-Fi signals, Bluetooth or other technologies. We will collect this information, if you opt in through the App or other program (either during your initial login or later) to enable certain location-based services available within the App (for example, locating available lodging closest to you). To disable location capabilities of the App, you can log off or change your mobile device’s settings.
Use of Personal Information
Depending on the particular Services you access, we may use your Personal Information for some of the various purposes described below:
1. Uses related to your use of our Services:
Booking requested travel, accommodations, activities, etc.
Providing services related to your booking(s)
Creating, maintaining, and updating user accounts and authenticating you as a user
Enable and facilitate acceptance and processing of payments and other transactions
2. Uses related to user communications and/or marketing:
Responding to your questions and requests for information
Enabling communication between you and travel and activity suppliers
Marketing our products and services, optimizing such marketing to be more relevant to you, and measuring and analyzing the effectiveness of our marketing and promotions
3. Other business and compliance related purposes:
Maintaining, improving, researching, and measuring the effectiveness of our Site and App and their functionality, performance, and effectiveness
Promoting security, verifying identities of our customers, preventing and investigating fraud and unauthorized activities, defending against claims and other liabilities, and managing other risks
Complying with applicable laws, protect our and our users’ rights and interest, defend ourselves, and responding to law enforcement, other legal authorities, and requests that are part of a legal process
Complying with applicable security and anti-terrorism, anti-bribery, customs and immigration, and other such due diligence laws and requirements
Operating our business and other business related purposes permitted by law
Sharing of Personal Information
1. Third-party service providers. We share Personal Information with third-parties in connection with the delivery of services to you and the operation of our business (for example, to provide credit card processing, customer service, business analytics, fraud prevention and compliance services, and so that we may serve you with advertising and promotions regarding our services that are tailored to your interests). These third-party service providers are required to protect Personal Information we share with them and may not use any directly identifying Personal Information other than to provide services we contracted them for. They are not allowed to use the Personal Information we share for purposes of their own direct marketing (unless you have separately consented with the third-party under the terms provided by the third-party).
2. Travel suppliers. We share Personal Information with travel-related suppliers such as hotels, airlines, car-rental companies, insurance, activity providers, and tour operators who fulfill your booking. Please note that travel suppliers may contact you to obtain additional information if and as required to facilitate your booking or to otherwise provide the travel or associated services.
3. Legal rights and obligations. We may disclose your Personal Information to enforce our policies, or where we are permitted (or believe in good faith that we are required) to do so by applicable law, such as in response to a request by a law enforcement or governmental authority, in connection with actual or proposed litigation, or to protect and defend our property, people and other rights or interests. We may also share your Personal Information pursuant to a subpoena or other legal request, or as necessary to remit certain taxes in the course of processing payments as required by law or legal process.
Your Personal Information Related Rights and Choices
You have certain rights and choices with respect to your Personal Information:
You can update the accuracy of your information at any time by either logging into your account or contacting us at email@example.com
If you have an account with us, you may change your communication preferences by logging in and updating the information in your account
You can control our use of certain cookies by editing the settings in your web browser
If you no longer wish to receive marketing and promotional emails, you may unsubscribe by clicking the ‘unsubscribe’ link in the email. You can also log into your account to change communication settings. Please note that if you choose to unsubscribe from or opt out of marketing emails, we may still send you important transactional and account-related messages from which you will not be able to unsubscribe
For our App, you can view and manage notifications and preferences in the settings menus of the App and of your operating system
If we are processing or utilizing your Personal Information on the basis of consent, you may withdraw that consent at any time by contacting us. Withdrawing your consent will not affect the lawfulness of any processing that occurred before you withdrew consent and it will not affect our processing of your Personal Information that is conducted in reliance on a legal basis other than consent
Some web browsers may transmit "do-not-track" (DNT) signals to sites with which the browser communicates. Because of differences in how web browsers incorporate and activate this feature, it is not always clear whether users intend for these signals to be transmitted, or whether users are even aware of them. Until a standard for DNT is set, our Site will not support DNT directly. We have enacted various measures though to anonymize user data received from users that we recognize as transmitting DNT signals in an attempt to honor their request as much as practical.
Personal Information Submitted by Children
We do not knowingly collect personally identifiable information from children under 13. If a parent or guardian becomes aware that his or her child has provided us with Personal Information without their consent, he or she should contact us. If we become aware that a child under 13 has provided us with personal information, we will delete such information from our files.
While no Internet site can guarantee absolute security, we use physical, electronic, and administrative safeguards to assist us in preventing unauthorized access, maintaining data accuracy, and correctly using your Personal Information. Any personal information is encrypted both in transit between the user’s device and our servers and at rest. Access to these servers is severely restricted based on role-based access control and the principle of least privilege. All operations performed on these servers generate auditable events that additionally track the authenticated user performing the operation.
International Data Transfer
The Personal Information we process may be transmitted or transferred to countries other than the country in which you reside. Those countries may have data protection laws that are different from the laws of your country.
The criteria we use to determine our retention periods include:
The duration of our relationship with you, including any open accounts or recent bookings or other transactions you have made
Whether we have a legal obligation related to your Personal Information, such as laws requiring us to keep records of your transactions with us
Whether there are any current and relevant legal obligations affecting how long we will keep your Personal Information, including contractual obligations, litigation holds, statutes of limitations, and regulatory investigations
If you have any questions or concerns about our use of your Personal Information, please contact us at: firstname.lastname@example.org
XOKind Booking Terms
Last updated: April 29, 2020
The following terms and conditions (our “Booking Terms”) govern the reservation, purchase, and use of all Travel Services (as defined below) offered for sale by XOKind, Inc. (XOKIND), a California-based company located at 4445 Eastgate Mall, Ste. 200, San Diego, California 92121.
All bookings of Travel Services are also subject to the Terms and Conditions of the Supplier of the Travel Service(s) incorporated in your reservation. By placing a reservation with XOKIND, you agree to abide by all the Terms and Conditions of the applicable Suppliers, and to be bound by the limitations therein. If a Supplier’s Terms and Conditions are ever in conflict with our Booking Terms, XOKIND’s Booking Terms will control all issues relating to the liabilities and responsibilities of XOKIND.
Please read these Booking Terms carefully, ask us any questions you have about them, and/or consult an attorney if desired before you agree to be bound by them. You acknowledge that you have taken note of these Booking Terms before making a booking and have accepted the same by selecting the button marked “CONFIRM & BOOK”. Without this acceptance, the processing of a booking is not possible.
Table of Contents
Prices and Pricing Errors
Cancellation and Alteration Policies
Issuing Travel Documents
Travelers with Special Needs or Disabilities
International Travel: Passports, Visas, Vaccinations, etc.
Local Customs, Laws, and Travel Risks
Seller of Travel Registration Information
Limitation of Liability
Disclaimer of Warranties
Marketing Materials and Illustrative Photos
Disputes: Mandatory Binding Arbitration, Class Action Waiver, etc.
Governing Law, Venue, and Jurisdiction.
Attorney’s Fees, Costs, and Expenses of Suit
Severability and Survivability
Modification of Our Booking Terms
This agreement and its terms and conditions are herein referred to as our “Booking Terms” or this “Agreement”
“XOKIND” and/or “we” or “us” refer to XOKind, Inc. (doing business as “XOKIND”)
“Application” and/or “App” refers to the XOKIND mobile application
The “Site” is our website, located at http://www.xokind.com
“Travel Service(s)” or just “Service(s)” encompass: accommodations, including hotel rooms, resorts, or other lodgings; airfare, including add-ons to airfare purchases; tours and tour packages; activity and event reservations; car rentals; travel insurance; and any other travel or travel related products offered or sold by XOKIND.
The term “Trip” is defined as any Travel Service, or package of Travel Services, offered or sold by XOKIND.
References herein to “Traveler(s)” or “you” shall apply to each and any of the following: a party participating in a Trip and/or the party who purchases a Trip for themselves and/or others, including a parent or legal guardian who accepts these Booking Terms on a participants’ behalf if the party participating is not of legal age or cannot otherwise enter into a binding legal contract on their own behalf.
Travel Service Supplier (“Supplier(s)”) are any third-party providers of Travel Services.
“Accommodations” are any lodgings in a dwelling or similar living quarters afforded to Travelers including, but not limited to, hotels, motels, and resorts.
The Services offered by XOKIND are available for purchase by all North American residents who have the requisite power and authority to enter into and perform the obligations under these Terms and Conditions. You must be over the age of 18 to book a Trip and agree to these Terms and Conditions.
3. Prices and Pricing Errors
Only items and fees explicitly advertised as included in the price of a Travel Service will be included as part of Travel Service’s advertised price. We use commercially reasonable endeavors to publish and maintain accurate prices and information for Services. Suppliers provide the price, availability and other information related to these Services. In the event, however, that a Service is listed or provided to us at an incorrect price or with incorrect information due to typographical error or other error in pricing or information received from a Supplier, we retain the right to refuse or cancel any Reservation placed for such Service, whether or not the order has been confirmed and/or your credit card charged. If your credit card has already been charged for the purchase and your Reservation is canceled because of incorrect hotel, airline, or car provider information, we will promptly issue a credit to your credit card account in the amount of the charge. We expressly reserve the right to correct any advertised pricing errors and/or pending bookings. In such event, if available, we will offer you the opportunity to keep your pending reservation at the correct price or we will cancel your reservation without penalty.
No claim by Traveler relating to the price of a Trip will be considered once the reservation is effective. All prices are quoted in US dollars (US$) unless otherwise delineated. Rates for Travel Services are based on tariffs and exchange rates in effect at the time of posting and are subject to change prior to departure. Substantial changes in tariffs, exchange rates, price of fuel, services and labor sometimes increase the cost of Travel Service arrangements.
To book a Trip with XOKIND, please follow the booking procedures in the App. If you have difficulty booking through the App, please contact us directly at email@example.com
Full payment is due at time of booking. We accept payment by all Major Credit Cards (Visa, MasterCard, American Express, Discover, etc)
6. Cancellation, Substitution, and Alteration Policies
i. Cancellations, Substitutions, and Alterations attributable to Traveler
Cancellation, substitution, and/or alteration terms vary by Supplier. Some Services are completely non-refundable after booking. Please familiarize yourself with the terms of your Supplier prior to booking as we cannot be held accountable for your unfamiliarity with those terms.
a. For California and Illinois Residents only:
Upon cancellation of the transportation or Travel Services, where the Traveler is not at fault and has not canceled in violation of any terms and conditions previously clearly and conspicuously disclosed and agreed to by the Traveler, all sums paid to the seller of travel for services not provided will be promptly paid to the Traveler, unless the Traveler advises the seller of travel in writing, after cancellation. This provision does not apply where the seller of travel has remitted the payment to another registered wholesale seller of travel or a carrier, without obtaining a refund, and where the wholesaler or provider defaults in providing the agreed-upon transportation or service. In this situation, the seller of travel must provide a California Traveler with a written statement accompanied by bank records establishing the disbursement of the payment, and if disbursed to a wholesale seller of travel, proof of current registration of that wholesaler.
ii. Cancellations and/or Alterations not attributable to Traveler
Particularly as a result of causes beyond our control (ie. “Force Majeure” as defined infra), changes and/or cancellations may need to be made to confirmed bookings. While we always endeavor to avoid changes and cancellations, XOKIND and our Suppliers must reserve the right to do so and to substitute alternative arrangements of comparable monetary value. XOKIND and our Suppliers reserve the right to adjust Travel Services by changing the modes of air travel, changing the category of Accommodations, or otherwise altering a Trip without prior notice. We accept no liability for loss of enjoyment as a result of these changes. XOKIND will attempt to provide Traveler advanced notice of any changes to your Trip to the extent commercially possible.
7. Issuing Travel Documents
Travel documents will only be sent to the purchasing Traveler who places the order and personally agrees to these Terms and Conditions. Should you change your email address, phone number, or address before your departure date, you are required to advise us of the change. If a Traveler provides incorrect information to XOKIND, we do not assume any liability if the Trip is adversely affected or made impossible by the non-receipt of travel documents.
8. Travelers with Special Needs or Disabilities
If you have special needs (e.g., wheelchair accessible room, traveling with seeing eye dog, etc.) you must contact all relevant Suppliers for your Trip ahead of time and verify that those special needs can be met. Depending on their terms and conditions, your reservation may be refunded, canceled or modified if special needs cannot be met. XOKIND makes no guarantee as to the ability of any Travel Supplier to meet the special needs of disabled Travelers.
Travelers should be aware that different countries have their own standards of accessibility for persons with disabilities. Before you travel, visit travel.state.gov/destination and enter the appropriate country or area to find information for mobility-impaired Passengers in the “Special Laws & Circumstances” Section.
Should you have to cancel your Trip because of illness, injury or death to you or an immediate family member, depending on the type of coverage purchased, trip cancellation insurance may protect some or all deposits and payments for Trip costs. Trip cancellation and interruption penalties are significant. Purchasing trip cancellation insurance at a much later date may limit some of the coverage as to pre-existing or other conditions. XOKIND recommends the immediate purchase of travel cancellation insurance including emergency medical evacuation, flight delay, baggage and repatriation.
It is Traveler’s responsibility to understand the limitations of their insurance coverage and purchase additional insurance as needed. It is the Traveler’s sole responsibility to research, evaluate and purchase appropriate coverage. Traveler agrees that XOKIND is not responsible for any uninsured losses.
10. International Travel Requirements: Passports & Visas, Vaccinations, etc.
It is Traveler’s sole responsibility to verify they have all the necessary visas, transit visas, passports, and vaccinations prior to travel and have paid any required reciprocity fees for their destination. A full and valid passport is required for all persons traveling to any of the destinations outside the U.S. that we feature. You must obtain and have possession of a valid passport, all visas, permits and certificates, and vaccination certificates required for your entire Trip.
Most international Trips require a passport valid until at least six (6) months beyond the scheduled return date. Further information on entry requirements can be obtained from the State Department, by phone (202) 647-5335 or accessed online at http://travel.state.gov/content/passports/en/passports.html, or directly from the destination country's website. Some countries require you to be in possession of a return ticket or exit ticket and have sufficient funds, etc. Similarly, certain countries require that the Traveler produce evidence of insurance/repatriation coverage before it will issue a visa.
You must carefully observe all applicable formalities and ensure that the surnames and forenames used for all Travelers when making a booking and appearing in their travel documents (booking forms, travel tickets, vouchers, etc.), correspond exactly with those appearing on their passport, visas, etc.
Immunization requirements vary from country to country and even region to region. Up-to-date information should be obtained from your local health department and consulate. You assume complete and full responsibility for, and hereby release XOKIND from, any duty of checking and verifying vaccination or other entry requirements of each destination, as well as all safety and security conditions of such destinations during the length of the proposed travel or extensions expected or unexpected. For State Department information about conditions abroad that may affect travel safety and security, you can contact them by phone at (202) 647-5335. For foreign health requirements and dangers, contact the U.S. Centers for Disease Control (CDC) at (404) 332-4559, use their fax information service at (404) 332-4565, or go to http://wwwnc.cdc.gov/travel/.
WE CANNOT ACCEPT RESPONSIBILITY IF YOU ARE REFUSED PASSAGE ON ANY AIRLINE, TRANSPORT OR ENTRY INTO ANY COUNTRY DUE TO THE FAILURE ON YOUR PART TO CARRY OR OBTAIN THE CORRECT DOCUMENTATION OR IMMUNIZATIONS. IF FAILURE TO DO SO RESULTS IN FINES, SURCHARGES, CLAIMS, FINANCIAL DEMANDS OR OTHER FINANCIAL PENALTIES BEING IMPOSED ON US, YOU WILL BE RESPONSIBLE FOR INDEMNIFYING AND REIMBURSING US ACCORDINGLY.
i. Pricing and Taxes
Prices of Accommodations are based on single occupancy unless described otherwise. If you prefer double occupancy, you may select that option during the booking process.
In some countries, there is a local tax known as "visitors' tax", “city tax” "tourist tax" (or similar) and other fees including (but not limited to) resort fees or service charges, which shall be paid directly by Traveler at their Accommodations and/or at the airport. Our Suppliers shall use reasonable endeavors to provide, at the time of booking, an estimation of the applicable fees and/or local tax(es) attributable to each individual booking and payable at the time of booking and/or locally on arrival (“Local Tax/Fee Estimation”). Notwithstanding the foregoing, we cannot warrant that the Local Tax/Fee Estimations shall be accurate, and Travelers acknowledge and agree that the Local Tax/Fee Estimations are provided as estimates only. Travelers further acknowledge that Local Taxes and Fee Estimations may change from time to time. As a result, we cannot be held liable for any loss, costs or damages incurred as a result of the provision of such Local Taxes/Fee Estimations.
ii. Categories and Living Standards
The categories of the Accommodations we offer have been provided by the Accommodation Suppliers themselves and are in accordance with specific regulations applicable in each country. Accommodations and living standards may vary from country to country and region to region. An Accommodation in one country, therefore, may not be similar in terms of services and quality to an Accommodation in another, despite belonging to the same category. XOKIND makes no guarantees about Accommodation living standards.
iii. Accommodation Ownership and Responsibility for Operation
XOKIND provides the Accommodations for Trips through third-party Suppliers and retains no ownership or management interest in those Accommodations. XOKIND does not guarantee the location or the amenities of the Accommodations nor the performance of the third-party Suppliers. If any issues arise with your Accommodations, please contact the owner/operators of the respective Accommodations directly.
iv. Refurbishment / Renovations
We provide the information supplied by our Accommodation Suppliers regarding the existence of works of refurbishment or renovation of the Accommodations, as well as duration thereof. We shall not accept claims for works about which we have not been informed or which extend beyond the planned date of conclusion thereof.
v. Age Requirements for Check-in
In some countries the legal adult age may differ depending on the relevant local legislation. It is the sole responsibility of Traveler to ensure that they are at least of legal age in order to check into their Accommodations.
vi. Holding Deposits
Many Accommodation Suppliers require a holding deposit on credit or debit card upon check-in to cover incidental charges incurred during the Traveler’s stay, including but not limited to, long distance telephone charges, room service, resort fees, in-room movies, damage or theft of property, mini bar usage and other such amenities. Such deposit is unrelated to any payment received by us for your Accommodation booking.
vii. No Show Travelers
No shows without prior warning for reserved Accommodations shall be considered a cancellation. Charges for no show Travelers may range from the cost of one night to 100% of the cost of the booking.
viii. Reservation Modifications
Unless specifically authorized by XOKIND, Travelers shall not be allowed to reduce the reserved period of stay, nor change the names on their booking once it has been confirmed. Any such changes shall be deemed to be a cancellation of the booking.
Modifications to extend the reserved period shall be subject to availability; in the event of an extension, the price shall be modified accordingly.
In the event Traveler cancels their reservation for Accommodations, Traveler shall have the right to be returned all amounts paid, with deduction of the amounts, if any, which may have accrued in terms of cancellation charges. Cancellation costs may vary depending on the destination, dates and relevant Accommodation Supplier.
All cancellations should be made by emailing us directly at firstname.lastname@example.org. After we receive notice of a cancellation, we will inform you of all the charges, if any, which may be applicable.
x. Changes to Names of Particular Accommodations
Throughout the year, some Accommodations may change their name or trade name. This change shall not be construed as a change of Accommodations or modification of a booking.
xi. Reimbursement for Early Check-Out
Any claims by Travelers for reimbursement for leaving their Accommodations before the reserved departure date (early check-out), must be provided to us within 15 days of the effective date of departure, together with written confirmation from the Accommodation Supplier of time and date of departure. For early check-outs, Accommodation Suppliers may charge the full amount of the original booking, in which case reimbursement shall not apply.
xii. Accommodation Descriptions
All descriptions of Accommodations and their amenities are based on information we have received and/or our interpretation of that information. We cannot be held responsible for any inaccuracies or errors in the provided descriptions, and disclaim any liability for any errors or other inaccuracies in the provided descriptions.
12. Air Transport
i. General conditions governing air transport
XOKIND’s responsibilities in respect to air travel are limited by the relevant airline’s Contract of Carriage. All airline Contracts of Carriage are available for view publicly on their websites and at their office branches. If your Trip involves carriage by multiple carriers, you will be bound by the Contracts of Carriage of each carrier.
XOKIND is not able to specify the type of aircraft to be used by any airline or guarantee seat assignments, even if pre-booked with the airline. In certain situations out of our control, the airline fulfilling your reservation may change from the airline displayed on our App. XOKIND is not responsible for losses due to cancelled flights, seats, or changed flight itineraries. Airlines retain the right to adjust flight times and schedules at any time, and these changes may include a change in the airline you fly, your aircraft type or destination. Such alterations do not constitute a significant change to your Trip. If an airline cancels or delays a flight, you should work with the airline to ensure you arrive at your destination on or ahead of time.
XOKIND will not provide any refund for Trips missed, in part or full, due to missed, cancelled or delayed flights, or other flight irregularities including, without limitation, denied boarding whether or not you are responsible for such denial. Airline flights may be overbooked and you may be denied boarding. A person denied boarding on a flight may be entitled to a compensatory payment or other benefits from the airline. The rules for denied boarding are available at all ticket counters in your Contract of Carriage.
ii. Flight Times
Sometimes, a flight's scheduled departure or arrival time in the App is different from the times reflected on your e-ticket. This may occur when the airline doesn't transmit the updated schedule to us. If the flight is a month and more away, the scheduled time should update closer to the departure date.
If it isn't updated two to three weeks prior to your departure date, we would appreciate if you contact us at email@example.com, so we can update the schedule.
The flight times given by XOKIND are subject to change. Up-to-date flight times will be shown on your e-ticket. Traveler must check the tickets very carefully immediately upon receipt of the latest timings.
iii. Failure to Check-in
Failure to check-in for a flight on the outward journey (on a charter or scheduled flight) will automatically result in cancellation of the return flight by the airline. We would encourage you to contact the airline directly on the date of departure if you fail to check-in for your outward journey, but you still want the airline to keep your return flight open; this decision remains at the discretion of the airline company.
iv. Flight Connections
If any booked flight connecting with your outbound or inbound flight is cancelled or delayed, the airlines reserve the right to provide that transport by any other means (coach/bus, train, etc.). If you organize your own connecting transport with the arrangements booked with XOKIND, we would advise that you reserve flexible or refundable tickets in order to avoid the risk of any financial loss. You are also advised not to make any important appointments for the day following your return date. XOKIND cannot accept responsibility for the consequences of delays (such as a cancelled scheduled flight) in the context of connecting transport organized by you.
v. Non-Use of Flight Segments
You agree not to purchase a ticket or tickets containing flight segments that you will not be using, such as a "point-beyond", "hidden-city", or "back-to-back tickets". You further agree not to purchase a round-trip ticket that you plan to use only for one-way travel. You acknowledge that the airlines generally prohibit all such tickets, and therefore we do not guarantee that the airline will honor your ticket or tickets. You agree to indemnify XOKIND against any airline claims for the difference between the full fare of your actual itinerary and the value of the ticket or tickets that you purchased.
XOKIND assumes no liability for any loss or damage to baggage or personal effects, whether in transit to or from a Trip, or during a Trip. The airline is liable to you for the baggage you entrust to it only for the compensation contemplated in the international conventions and relevant statutes. In the event of damage, late forwarding, theft or loss of luggage, you should contact your airline and declare the damage, absence or loss of your personal effects before leaving the airport, and then submit a declaration, attaching the originals of the following documents: the travel ticket, the baggage check-in slip, and the declaration. It is recommended that you take out an insurance policy covering the value of your items.
Additional and oversized baggage fees: Most airlines have their own policy regarding baggage. Always check with your airline before you fly for their most current baggage fees and rules.
If we do not have info for your flight, we recommend that you check with your airline ahead of time for any weight restrictions and additional charges relating to checked baggage. You will be responsible for paying to the airline any additional charges for checked or overweight baggage, including, but not limited to, golf bags and oversized luggage. If you exceed the weight limit set by your airline, and excess weight is permitted, you must pay a supplement directly to the airline at the airport.
Direct flights may be “non-stop” or may involve one or more stop-overs (in the latter case this means the same flight by the airline, because the flight number remains the same). The same applies to connecting flights that may be subject to crew changes. When you reserve a scheduled or charter flight involving a stop-over in a town, and the second flight takes off from a different airport to the airport of arrival, ensure that you have sufficient time for reaching the second airport. The journey to the other airport is at your own expense. XOKIND will not be able to reimburse you for these costs, nor will it be liable if you miss the second flight.
An electronic ticket (“E-ticket”) is a ticket with no physical form. When using this type of ticket, Traveler must go to the check-in desk of the airline concerned and show a valid travel document (passport, visa, identity card, etc.) in order to obtain his / her boarding card. Traveler must strictly observe the times for checking in.
xi. Problems related to the issuance of e-tickets
As of June 1st, 2008, the International Air Transport Association (IATA) imposed rules with regard to the issuing of air travel tickets. As of that date, travel agencies and airlines have an obligation to only issue travel tickets via electronic means.
Due to technical constraints to do with airline’s restrictions in relation to certain requirements (infants under the age of 2, inter-airline agreements, groups, etc.), it may be impossible to issue an electronic ticket. Therefore, though a flight may be shown as available, it might prove impossible for us to honor your reservation. This situation, which is outside our control, will not result in liability on our part.
If we cannot issue you an e-ticket, we will contact you to propose an alternative route solution. This could involve a different tariff and/or additional costs for which you would be responsible. In the event of the absence of an alternative solution, your refusal to pay any tariff difference, or if the issuance of tickets proves impossible, we would be forced to cancel your reservation at no cost to you. We will provide you with a full refund within 30 days after determining that there is no alternative solution possible.
Some activities we offer are physically active and interactive, so Travelers must be in good physical condition and health to participate in them. An offered activity may not be appropriate for all ages or for individuals with certain medical conditions or disabilities. XOKIND may not be held liable in the event of an incident or accident which is due to a lack of vigilance on your part.
It may happen that certain activities offered are no longer provided by the local Supplier for climatic reasons, in the event of Force Majeure, outside of the local tourist season, or when the minimum number of participants required for providing a given activity is not reached. In the early or late season, some activities may not be available, some of the facilities may be closed, or maintenance work may be in progress. As a general rule, entertainment and sports activities may vary in frequency depending on how many people are participating in them at the time and based on climatic conditions. XOKIND cannot be liable for activities unavailable due to any of the reasons listed above or for any other reason outside of our control.
YOU ACKNOWLEDGE THAT THE USE OR ENJOYMENT OF AN ACTIVITY MAY BE HAZARDOUS AND INHERENTLY RISKY, AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, XOKIND SHALL HAVE NO LIABILITY FOR ANY PERSONAL INJURY OR DEATH; LOST, STOLEN, DAMAGED OR DESTROYED PROPERTY; OR OTHER LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE ACTIVITY.
14. Local Customs, Laws, and Travel Risks
Travelers may be traveling to foreign countries, with different customs, standards, laws and risks than those Travelers are accustomed to. Traveler understands that they must be prepared to cope with the unexpected, with local customs and shortages, with the vagaries of weather, travel and humankind in general. As such, Traveler acknowledges and accepts the risks associated with travel in a foreign country and agrees to release and hold XOKIND harmless for any such problems experienced while participating in their Trip.
Although most travel to offered destinations is completed without incident, travel to certain areas may involve greater risk than others. You assume sole responsibility for your own safety at any destination traveled to. XOKIND does not guarantee your safety at any time, and assumes no responsibility for gathering and/or disseminating information for you relating to risks associated with your destinations. BY OFFERING OR FACILITATING TRAVEL TO CERTAIN DESTINATIONS, WE DO NOT REPRESENT OR WARRANT THAT TRAVEL TO SUCH POINTS IS ADVISABLE OR WITHOUT RISK, AND WE SHALL NOT BE LIABLE FOR DAMAGES OR LOSSES THAT MAY RESULT FROM TRAVEL TO SUCH DESTINATIONS.
Any notices required or permitted hereunder shall be given:
i. If to XOKIND, via email to:
Or in writing via certified mail, return receipt requested, addressed to:
4445 Eastgate Mall, Ste. 200
San Diego CA, 92121
ii. If to Traveler, at the email or physical address provided by Traveler during the booking process.
iii. Such notice shall be deemed given: upon personal delivery; if sent by electronic mail, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, three (3) days after the date of mailing.
16. Seller of Travel Registration Information
California Registration Info: XOKIND is registered with the California Department of Justice. CST# 2142767. Registration as a seller of travel does not constitute approval by the State of California. California law requires certain sellers of travel to have a trust account or bond to protect consumer’s money. This business has a $15,000 bond with Old Republic Surety Company.
This business is a participant in the Travel Consumer Restitution Corporation (TCRC). You, the passenger, may request reimbursement from TCRC if you are owed a refund of more than $50 for transportation or travel services which was not refunded in a timely manner by a seller of travel who was registered and participating in the TCRC at the time of sale. The maximum amount which may be paid by the TCRC to any one passenger is the total amount paid on behalf of the passenger to the Seller of Travel, not to exceed $15,000. Please note that if you were outside of California at time of purchase, such transactions are not covered by the TCRC.
A claim must be submitted to the TCRC within six months after the scheduled completion date of the travel. A claim must include sufficient information and documentation to prove your claim and a $35 processing fee. You must agree to waive your right to other civil remedies against a registered participating seller of travel for matters arising out of a sale for which you file a claim with the TCRC, if you were located in California at the time of the sale. You may request a claim form by writing to: Travel Consumer Restitution Corporation, P.O. Box 6001, Larkspur, CA 94977-6001; or by faxing a request to: 415-927-7698.
Florida Registration No. ST42384
Iowa Registration No. 1662
Illinois Registration No. PENDING
Washington Registration No. 604-602-367
Hawaii Registration No. PENDING
17. Limitation of Liability
IN NO EVENT SHALL XOKIND BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR ANY LOSS OF OPPORTUNITY OR OTHER PECUNIARY LOSS, EVEN IF XOKIND HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES OR LOSSES, WHETHER SUCH LIABILITY IS BASED UPON CONTRACT, TORT, NEGLIGENCE OR OTHER LEGAL THEORY. IN NO EVENT SHALL XOKIND’S TOTAL AGGREGATE LIABILITY TO THE TRAVELER FOR CLAIMS ARISING UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY THE TRAVELER TO XOKIND UNDER THIS AGREEMENT.
XOKIND OFFERS VARIOUS TRAVEL SERVICES PROVIDED BY THIRD PARTY SUPPLIERS. XOKIND RETAINS NO OWNERSHIP INTEREST, MANAGEMENT, OR CONTROL OF THOSE THIRD PARTY SUPPLIERS. TO THE FULLEST EXTENT PERMITTED BY LAW, XOKIND DOES NOT ASSUME LIABILITY FOR ANY INJURY, DAMAGE, DEATH, LOSS, ACCIDENT OR DELAY DUE TO AN ACT OR OMISSION OF ANY THIRD PARTIES (INCLUDING THIRD PARTY SUPPLIERS), GOVERNMENTAL AUTHORITY, OR ACTS ATTRIBUTABLE TO YOU YOURSELF, INCLUDING, WITHOUT LIMITATION, NEGLIGENT OR RECKLESS ACTS.
18. Disclaimer of Warranties
The inclusion or offering of any Services by XOKIND does not constitute any endorsement or recommendation of such products or services. UNLESS OTHERWISE STATED, ALL GOODS AND SERVICES OFFERED BY XOKIND ARE PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE" BASIS. Certain kinds of information, such as Hotel ratings, should be treated as broad guidelines. XOKIND does not guarantee the accuracy of this information.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, XOKIND DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY FOR A PARTICULAR PURPOSE, TITLE, UNINTERRUPTED SERVICE, AND ANY WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE FOR ALL GOODS AND SERVICES SOLD BY/THROUGH XOKIND. Applicable law in your jurisdiction may not allow the exclusion of implied warranties, so the above exclusions may not apply to you.
You agree to defend and indemnify XOKIND, and/or its respective Suppliers, and any of XOKIND’s officers, directors, employees and agents from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including but not limited to reasonable legal and accounting fees, brought by third parties as a result of:
your breach of this Agreement;
your violation of any law or the rights of a third party;
your use of the App or Site; or
your use of the App or Site for, or on the behalf of, third parties.
20. Force Majeure
XOKIND shall not be responsible for failure to perform any of its obligations under this Agreement during any period in which such performance is prevented or delayed due to Force Majeure. “Force Majeure” refers to any event beyond XOKIND’s reasonable control, including but not limited to severe weather, fire, flood, mudslides, earthquakes, war, labor disputes, strikes, political unrest, natural or nuclear disaster, epidemics, World Health Organization’s advisories and/or alerts, Center for Disease Control’s advisories and/or alerts, U.S. State Department’s advisories and/or alerts, any order of any local, provincial or federal government authority, interruption of power Services, terrorism or any other causes beyond the control of XOKIND or deemed by XOKIND to constitute a danger to the safety and well-being of Travelers. XOKIND and our Suppliers reserve the right to cancel any Services due to Force Majeure. Any additional charges incurred arising from the postponement, delay or extension of a Trip due to Force Majeure will be the Traveler’s responsibility.
21. Marketing Materials and Illustrative Photos
XOKIND endeavors to illustrate the Travel Services it offers using photographs or illustrations that provide a realistic representation of the Services. However, please note that photographs and illustrations appearing in descriptions are for illustrative purposes only. They are not contractual nor are they to be construed as guarantees of the conditions of the Travel Services pictured at the time of a scheduled Trip.
If you believe that XOKIND has not adhered to this Agreement, please contact XOKIND by emailing us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, please let us know.
23. Disputes: Mandatory Binding Arbitration, Class Action Waiver
You and XOKIND shall attempt in good faith to resolve any dispute concerning, relating, or referring to a Trip, Services sold by us, XOKIND’s website or mobile app, any literature or materials concerning XOKIND, and these Terms and Conditions or the breach, termination, enforcement, interpretation or validity thereof, (hereinafter a “Dispute”) through preliminary negotiations. If the Dispute is not resolved through good faith negotiation, all Disputes shall be resolved exclusively by binding arbitration held in San Diego, California and presided over by one (1) arbiter. The arbitration shall be administered by JAMS or a similar ADR organization pursuant to JAMS Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. The arbitrator’s decision shall be final and binding and judgment may be entered thereon. In the event a party fails to proceed with arbitration the other party is entitled to costs of suit including a reasonable attorney’s fee for having to compel arbitration. Nothing herein will be construed to prevent any party’s use of injunction, and/or any other prejudgment or provisional action or remedy. Any such action or remedy shall act as a waiver of the moving party’s right to compel arbitration of any dispute. YOU RECOGNIZE, BY AGREEING TO THESE TERMS AND CONDITIONS, YOU AND XOKIND ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION WITH RESPECT TO THE CLAIMS COVERED BY THIS MANDATORY BINDING ARBITRATION PROVISION.
24. Governing Law, Venue, and Jurisdiction
These Terms and Conditions and the relationship between you and XOKIND will be governed by U.S. law, particularly the laws of the State of California, without regard to its conflict of law provisions. You and XOKIND agree to submit to the personal jurisdiction of the federal and state courts of San Diego County with respect to any legal proceedings that may arise in connection with, or relate to, our Binding Arbitration clause and/or any other Dispute related to these Booking Terms not covered by our Binding Arbitration clause. Traveler and XOKIND agree the exclusive venue for any and all legal proceedings that may arise in connection with, or relate to, our Binding Arbitration clause and/or a Dispute, shall be the federal and state courts of San Diego County, and to irrevocably submit to the jurisdiction of any such court in any such action, suit or proceeding and hereby agrees not to assert, by way of motion, as a defense or otherwise, in any such action, suit or proceeding, any claim that (i) he, she or it is not subject personally to the jurisdiction of such court, (ii) the venue is improper, or (iii) this agreement or the subject matter hereof may not be enforced in or by such court.
25. Attorney’s Fees, Costs, and Expenses of Suit
If any act of law or equity, including an action for declaratory relief, is brought to enforce, interpret or construe the provisions of this Agreement and/or the included Mandatory Binding Arbitration Agreement, the prevailing party shall be entitled to recover actual reasonable attorney’s fees, costs, and expenses.
Traveler may not assign his rights or obligations hereunder without the prior written consent of XOKIND.
27. Severability and Survivability
If any provision, or portion of a provision, in these Terms and Conditions shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions. Traveler and XOKIND agree to substitute for such provision a valid provision which most closely approximates the intent and economic effect of such severed provision.
Notwithstanding any other provisions of this these Terms and Conditions, or any general legal principles to the contrary, any provision of these Terms and Conditions that imposes or contemplates continuing obligations on a party will survive the expiration or termination of these Terms and Conditions.
No delay or failure by either party to exercise or enforce at any time any right or provision hereof will be considered a waiver thereof of such party's rights thereafter to exercise or enforce each and every right and provision hereof. No single waiver will constitute a continuing or subsequent waiver. XOKIND does not guarantee it will take action against all breaches of this Agreement. No waiver, modification or amendment of any provision hereof will be effective unless it is in a writing signed by both the parties.
29. Consumer Complaints
Under California Civil Code Section 1789.3, California users of the Service receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at (800) 952-5210.
30. Modification of Our Booking Terms
Our Booking Terms may be amended or modified by us at any time, without notice, on the understanding that such changes will not apply to Trips booked prior to the amendment or modification. It is therefore essential that you consult and accept our Booking Terms at the time of making a booking, particularly in order to determine which provisions are in operation at that time in case they have changed since the last time you placed an order with XOKIND or reviewed our Booking Terms.
31. Entire Agreement
This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions or agreements between the parties with respect to such subject matter.
Last updated: April 29, 2020
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