PLEASE READ THIS TERMS OF USE AGREEMENT FOR METABOLIC ANALYSIS PROGRAM (THE “TERMS OF USE”) CAREFULLY.  THESE TERMS SET FORTH THE TERMS AND CONDITIONS UPON WHICH YOU MAY (I) RENT OR PURCHASE THE PNOĒ Metabolic Analysis Kit AND RELATED SOFTWARE AND HARDWARE (COLLECTIVELY, THE “EQUIPMENT”), AS DESCRIBED ON A PURCHASE ORDER SUBMITTED BY YOU AND ACCEPTED BY ENDO MEDICAL, INC.’S (ALONG WITH ITS SUBSIDARY, XHALE S.A., THE “COMPANY”) OR ANY LEASE AGREEMENT EXECUTED BY THE COMPANY AND YOU, AND/OR (II) ACCESS AND USE OF THE EQUIPMENT, WEBSITE USED IN CONNECTION WITH THE EQUIPMENT AND RELATED SERVICES (THE “WEBSITE”) AND/OR THE COMPANY’S MOBILE APPLICATION USED IN CONNECTION WITH THE EQUIPMENT AND RELATED SERVICES (THE “APPLICATION”).  BY ACCESSING OR USING THE EQUIPMENT, WEBSITE OR APPLICATION IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE AND THE APPLICATION (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”), BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, BROWSING THE WEBSITE, OR DOWNLOADING THE APPLICATION, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD AND OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF USE, AND (4) not a person barred from using Company Properties (AS DEFINED BELOW) under the laws of the United States, your place of residence or any other applicable jurisdiction.  THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE OR APPLICATION AND ANY INDIVIDUAL OR ENTITY THAT ACCESSES OR USES THE SERVICES.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.

PLEASE BE AWARE THAT SECTION 15 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION.  UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.  

ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.  THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT. 

PLEASE BE AWARE THAT SECTION 2.9 (COMPANY COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service.  If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.  The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.”

The Services include, without limitation, accessing and using the Equipment, the Website and Application, obtaining metabolic analysis reports, and obtaining bespoke diet plans for you and/or your clients, if applicable.

PLEASE NOTE THAT The Agreement IS subject to change by Company in its sole discretion at any time.  When changes are made, Company will make a new copy of the Terms of Use Agreement available at the Website and within the Application and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website or within the Application.  We will also update the “Last Updated” date at the top of the Terms of Use Agreement.  If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.1 (Registering Your Account) below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement.  Any changes to the Agreement will be effective immediately for new users of the Website, the Application and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website or Application for existing Registered Users, provided that any material changes shall be effective for Registered Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or Application or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 2.1 (Registering Your Account) below).  Company may require you to provide consent to the updated Agreement in a specified manner before further use of the Website, the Application and/ or the Services is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Application and/or the Services.  Otherwise, your continued use of the Website, the Application and/or Services constitutes your acceptance of such change(s).  PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

1. EQUIPMENT.

1.1 Equipment Lease.  You agree that the terms of any lease of Equipment shall be subject to a separate equipment lease agreement between you and the Company, incorporated herein by reference.  

1.2 Equipment Purchase.  This Section 1.2applies only to Equipment purchased by you.  Company will sell and provide you with the Equipment if so specified in a purchase order. You shall at all times maintain the Equipment in good operating condition and repair, normal wear and tear excepted.  

(a) Delivery of Equipment. All Equipment shall be delivered to you at the address set forth on your purchase order.

(b) Order Cancellation. If any Equipment is discontinued or otherwise becomes unavailable, Company reserves the right to cancel your purchase order and provide you a refund for the amount paid for the Equipment.

(c) Restrictions on Resale. To protect the intellectual property rights of Company and its licensors and suppliers, any resale of Equipment for personal and/or business profit is strictly prohibited. Company reserves the right to decline any order that it deems to possess characteristics of reselling.

(d) Third-Party Provider. Company uses a third-party service provider for fulfilling orders. By ordering any Equipment through the Services, you acknowledge that Company has no responsibility or liability for any delays that may result from orders handled by such third-party service provider.

(e) Limited Warranty on Equipment.  We provide a 1-year limited warranty covering defects in the workmanship or design of the Equipment. Please contact us within such 1-year warranty term if you feel there may be such a defect with your Equipment.

2. USE OF THE SERVICES AND COMPANY PROPERTIES.  

2.1 General.  The Equipment, the Application, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (each, a “Company Property” and collectively, the “Company Properties”) are protected by copyright laws throughout the world.  Subject to the Agreement, Company grants you a limited license to reproduce portions of Company Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Company in a separate license, your right to use any and all Company Properties is subject to the Agreement. 

2.2 Application License.  Subject to your compliance with the Agreement, Company grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes.  Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. 

2.3 Usage and Limitations.              

(a) Intended Use of Services. The Services are intended to provide non time critical information for which time is not of the essence. While our aim is that our Services be highly reliable and available, they are not intended to be available twenty four hours a day. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Company’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, among others. You hereby acknowledge these limitations and agree that Company is not responsible for any damage that may be caused due to the temporary failure to provide such Services or the delayed provision of such Services, for the above reasons. 

(b) You use the Services at your own risk.  Our goal is to provide helpful and accurate information in connection with the Services, but we make no endorsement, representation, warranty, or covenant of any kind about any information, services, or recommendations, including without limitation any reports regarding metabolic analysis and customized diet plans, made available to you through the Services in connection with your use of the Services (“Services Information”), or that your use of the Services will result in an increased level of fitness or better health. The Product Information is provided “as-is” and “as available.” You agree that it is your responsibility to educate yourself about how to use the Services and interpret and respond to the Services Information.  The Services have not been evaluated for safety and efficacy for any purpose by the U.S. Food and Drug Administration. The accuracy of the data collected and presented through the Services is not intended to match that of medical devices or scientific measurement devices.  You expressly acknowledge and agree that Company is not responsible or liable for the accuracy, reliability, effectiveness, or correct use of the Services or Services Information. If you rely on any Services Information, you do so solely at your own risk.

(c) Consult Your Doctor. The Services are not intended to diagnose, treat, cure, or prevent any disease, health condition, or illness. Consult your doctor before using the Services, engaging in an exercise program, or changing your diet. If you experience a medical emergency, stop using the Services and Services Information, and consult with a medical professional.  You expressly acknowledge and agree that Company is not responsible for any health problems or injuries that may result from training programs, nutrition advice, products, or events you learn about as a result of your use of the Services.  Your use of the Services and any exercise programs or changes to your diet that you engage in as a result of your use of the Services is solely at your own risk. In addition, Company bears no liability for any advice provided by experts (such as doctors, nutritionists, trainers etc.) based on the information provided by the Services, for which the only ones liable are such experts themselves. 

2.4 No Liability for Infections. You expressly acknowledge and agree that, except as required by applicable law, Company is not responsible or liable for infections or other diseases that you may contract after using the Equipment, including any Equipment which has not been properly cleaned, stored, and/or maintained in accordance with Company’s Product Guidelines, available at our website www.mypnoe.com, and any other instructions provided by Company.  Furthermore, Company bears no liability for any infections or other diseases that may be caused due to the non-proper function, use and storage of non-permanent pieces of Equipment, which are manufactured by third parties.

Personal Data.  Any information that Company collects through your use of the Services is subject to Company’s privacy policy found at https://www.mypnoe.com/privacy-policy/ (the “Privacy Policy”).  The Privacy Policy is incorporated by reference into these Terms of Use and you are agreeing to accept and abide by it while using the Services.  Both when signing up and during your use of the Services, Company collects, stores and processes your personal data (including: i. your first and last name, ii. your age, iii. your sex, iv. your weight, v. your height, vi. data about biomarkers related to human breath, vii. data related to the training routine of the user, viii. data related to the nutrition routine of the user, ix. data related to basic biomarkers, such as heart variability) according to the terms of the Privacy Policy.  When you use our Services you accept our right to collect, store and process your personal data in accordance with the terms of the Privacy Policy.  You further agree that when you sign up and/or use our Services through Equipment which is in the possession of an expert who provides advice to you based on the information produced by such Equipment and the Services (the “Facilitator”), such Facilitator will have access to all your personal data and information to provide customized advice to you.  You acknowledge and agreement that your personal data and information may be shared amongst the Company; its affiliates; Facilitators; and other third party service providers of the Company in accordance with the Privacy Policy.  For any further information or request as to the collection, storage and processing of your personal information, you may contact the Customer Services Department of Endo (3 Evangelistrias str. Kallithea, Attica, Greece, or at tel.: +1(628) 212-0923 or via email at: info@endomedical.co.). Please review the Privacy Policy for further information relating to Company’s collection and processing of personal data.

2.5 Facilitator’s Compliance with Law; Consents.  If you are a Facilitator, you agree to comply with all laws, regulations and rules regarding the use, confidentiality and security of personally identifiable information, to the extent any such law, regulation or rule is applicable to your performance under this Agreement.  This includes, without limitation: (a) having all individuals utilizing the Equipment in your possession and/or are participating in any Services made available by you (the “Facilitator Clients”), prior to such use and participation, review, acknowledge and agree to these Terms of Use and the Privacy Policy; (b) obtaining any other consents from such individuals necessary to use the Services; and (c) ensuring such individuals otherwise comply with these Terms of Use.  

2.6 Use by Minors.  Use of and access to the Services by individuals under the age of 18 is strictly prohibited and constitutes a violation of these Terms of Use, unless it is made upon their parent’s or legal guardian’s consent and upon a doctor’s or nutritionist’s opinion or advice. The Services are not available to any users previously prohibited for any reason from using the Services.  Facilitator shall be responsible for its Client’s compliance with this provision.

2.7 Automatic Software Updates. Company may from time to time develop software updates, bug fixes, updates, upgrades and other modifications to improve the performance of the Services (“Updates”). These Updates may be automatically installed without providing any additional notice or receiving any additional consent. You hereby consent to these automatic Updates. If you do not want such Updates, you may close your Account and stop using our Services. If you do not proceed with closing your Account, you will continue to receive automatic Updates. We inform you that you may be required to install Updates to use the Services and you hereby agree to promptly install any such Updates. Your continued use of the Services constitutes acceptance of these Terms of Use with respect to the Services. We do not bear any responsibility for any data inaccuracy or improper functioning of the Services that is caused by your failure to install any automatic Updates.

2.8 Company Communications.  By entering into this Agreement or using the Company Properties, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications.  You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Company Properties, updates concerning new and existing features on the Company Properties, communications concerning promotions run by us or our third-party partners, and news concerning the Company and industry developments.  Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send.  IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. 

3. REGISTRATION.

3.1 Registering Your Account.  In order to access certain features of Company Properties, you may be required to become a Registered User.  For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Website (“Account”), has a valid account on the social networking service (“SNS”) through which the user has connected to the Website (each such account, a “Third-Party Account”), or has an account with the provider of the Application for the user’s mobile device.

3.2 Access Through a SNS.  If you access the Company Properties through a SNS as part of the functionality of the Website, the Application and/or the Services, you may link your Account with Third-Party Accounts, by allowing Company to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account.  You represent that you are entitled to disclose your Third-Party Account login information to Company and/or grant Company access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third-party service providers.  By granting Company access to any Third-Party Accounts, you understand that Company may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Company Properties (collectively, “Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through Company Properties via your Account.  Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content (as defined in Section 4.1 (Types of Content)) for all purposes of the Agreement.  Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Company Properties. Please note that if a Third-Party Account or associated service becomes unavailable, or Company’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through Company Properties.  You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website.  PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND COMPANY DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS.  Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Company is not responsible for any SNS Content.

3.3 Registration Data.  In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You are responsible for all activities that occur under your Account.  You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Company Properties by minors.  You may not share your Account or password with anyone, and you agree to (y) notify Company immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session.  If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of Company Properties (or any portion thereof).  You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.  You agree that you shall not have more than one Account per platform or SNS at any given time.  Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights.  You agree not to create an Account or use Company Properties if you have been previously removed by Company, or if you have been previously banned from any of Company Properties.

3.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Company. 

3.5 Necessary Equipment and Software.  You must provide all equipment and software necessary to connect to Company Properties, including but not limited to, a computer, tablet, or mobile device that is suitable to connect with and use Company Properties.  You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Company Properties.  

4. RESPONSIBILITY FOR CONTENT.

4.1 Types of Content.  You acknowledge that all Content, including Company Properties, is the sole responsibility of the party from whom such Content originated.  This means that you, and not Company, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Company Properties (“Your Content”), and that you and other Registered Users of Company Properties, and not Company, are similarly responsible for all Content that you and they Make Available through Company Properties (“User Content”).

4.2 Storage.  Unless expressly agreed to by Company in writing elsewhere, Company has no obligation to store any of Your Content that you Make Available on Company Properties or Services Information.  Company has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Company Properties.  Certain Services may enable you to specify the level at which such Services restrict access to Your Content.  You agree that Company retains the right to create reasonable limits on Company’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Company in its sole discretion. 

5. OWNERSHIP.

5.1 Company Properties.  Except with respect to Your Content and User Content, you agree that Company and its suppliers own all rights, title and interest in Company Properties (including but not limited to, any computer code, themes, graphics, and documentation).  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Company Properties.

5.2 Trademarks.    and all related graphics, logos, service marks and trade names used on or in connection with any Company Properties or in connection with the Services are the trademarks of Company and may not be used without permission in connection with your, or any third-party, products or services.  Other trademarks, service marks and trade names that may appear on or in Company Properties are the property of their respective owners.

5.3 Your Content.  Company does not claim ownership of Your Content.  However, when you as a Registered User post or publish Your Content on or in Company Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.  For each piece of Your Content that you submit, you represent and warrant that: (i) you have the right to Make Available Your Content through and on the Services and grant the licenses set out above and (ii) Company will not need to obtain licenses from any third party or pay royalties to any third party.

5.4 License to Your Content.  Subject to any applicable account settings that you select, you grant Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing Company Properties to you and to our other Registered Users.  In addition, you waive all rights of publicity or privacy and moral rights in Your Content.  Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Company Properties.  You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.  You agree that you, not Company, are responsible for all of Your Content that you Make Available on or in Company Properties.  Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Company in its sole discretion.  You may not post or submit for print services a photograph of another person without that person’s permission.

5.5 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on Company Properties, you hereby expressly permit Company to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.

5.6 Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to Company through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Company Properties and/or Company’s business.

6. USER CONDUCT.  

6.1 As a condition of use, you agree not to use Company Properties for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action, or inaction, or (b) Make Available any Content on or through Company Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) offers, resells, or enables any third parties to use your Account or any Services you purchased or registered for, or otherwise generates income from the Services, other than Facilitator’s direct clients or as otherwise mutually agreed upon in writing by Company; (iv) impersonates any person or entity, including but not limited to any employee or representative of Company; (v) interferes with or attempts to interfere with the proper functioning of Company Properties or uses Company Properties in any way not expressly permitted by this Agreement; (vi) attempts to engage in or engages in, any potentially harmful acts that are directed against Company Properties, including but not limited to violating or attempting to violate any security features of Company Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Company Properties, introducing viruses, worms, or similar harmful code into Company Properties, or interfering or attempting to interfere with use of Company Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Company Properties; (vii) intentionally or unintentionally violates any applicable local, state, national or international law or regulation, including but not limited to any privacy law, any order of a court, or any Company policy; (viii) collects, distributes, discloses, uses, copies, or stores any personally identifiable information from any individual using your Equipment or the Services, without their express consent; (ix) use the Services to develop or build a competing product or service; or (x) advocates, encourages or assists any third party in doing any of the foregoing activities in this section. 

7. FEES AND PURCHASE TERMS.

7.1 General Purpose of Agreement: Sale of Service, not Software.  The purpose of the Agreement is for you to purchase Equipment and secure access to the Services.  All fees set forth within and paid by you under the Agreement shall be considered solely in furtherance of this purpose.  In no way are these fees paid considered payment for the sale, license, or use of Company’s software, and, furthermore, any use of Company’s software by you in furtherance of the Agreement will be considered merely in support of the purpose of the Agreement.

7.2 Payment.  You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable.   

7.3 Taxes.  The amounts paid under this Agreement do not include any Sales Tax that may be due in connection with the products and services provided under this Agreement.  If Company determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Company shall collect such Sales Tax in addition to the amounts required under this Agreement.  If any products, services, or payments for any products or services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Company, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Company for any liability or expense Company may incur in connection with such Sales Taxes.  Upon Company’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes.  For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

7.4 Free Trials and Other Promotions.  Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial.  At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable fee(s). If you are inadvertently charged for a service, please contact Company to have the charges reversed.

8. Indemnification.  

You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Company Party” and collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Client Data; (b) your use of, or inability to use, any Company Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; (e) your violation of any applicable laws, rules or regulations; or (f) if you are a Facilitator, the products and services you offer clients, other than Equipment used as directed by Company and Services provided by Company.  Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses.  This provision does not require you to indemnify any of the Company Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder.  You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Company Properties.

9. REPRESENTATIONS AND WARRANTIES

9.1 By You.  You represents and warrants to Company:

(a) that your use of the Services, including the Equipment (i) complies with all applicable law and regulations; (ii) this Agreement; and (ii) does not breach any contract between you and a third party;

(b) that you have all rights, licenses and permits necessary to use the Services, including the Equipment and, if you are a Facilitator, for your Clients’ use the Equipment and participate in the Services;

(c) if you are a Facilitator, that all your Clients have accepted and agreed to the Terms of Use and Privacy Policy;

(d) that you will not use the Equipment with any services or products other than the Services; and

(e) If you are a Facilitator, you shall properly store, clean, and maintain all Equipment in accordance with industry standard practice, applicable law, rules and regulations, and the terms of this Agreement.

10. DISCLAIMER OF WARRANTIES AND CONDITIONS.

10.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. 

(a) COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE.

(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH COMPANY PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS COMPANY PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS.  COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.

(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH COMPANY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

(e) From time to time, Company may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Company’s sole discretion.  The provisions of this section apply with full force to such features or tools.

10.2 No Liability for Conduct of Third Parties.  YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

10.3 No Liability for Conduct of Other Users.  YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF COMPANY PROPERTIES. YOU UNDERSTAND THAT COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF COMPANY PROPERTIES.  COMPANY MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.  COMPANY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH COMPANY PROPERTIES.

10.4 Third-Party Materials.  As a part of Company Properties, you may have access to materials that are hosted by another party.  You agree that it is impossible for Company to monitor such materials and that you access these materials at your own risk.

11. LIMITATION OF LIABILITY.

11.1 Disclaimer of Certain Damages.  YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF COMPANY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE COMPANY PROPERTIES, INCLUDING THE SERVICES AND THE SERVICES INFORMATION; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH COMPANY PROPERTIES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON COMPANY PROPERTIES; OR (e) ANY OTHER MATTER RELATED TO COMPANY PROPERTIES, INCLUDING THE SERVICES AND THE SERVICES INFORMATION, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.  THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

11.2 Cap on Liability.  TO THE FULLEST EXTENT PROVIDED BY LAW, COMPANY PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) ONE HUNDRED DOLLARS ($100.00 USD);or (b) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.  THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

11.3 User Content.  EXCEPT FOR COMPANY’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE COMPANY’S PRIVACY POLICY, COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

11.4 Exclusion of Damages.  CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

11.5 Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.

12. MONITORING AND ENFORCEMENT.  Company reserves the right to: (a) take any action with respect to any Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that your collection or use of Content or personal data or information violates this Agreement, violates any right of any person or entity, threatens the personal safety of users of the Company Properties or the public, or could create liability for the Company; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Company Properties; and/or (e) terminate or suspend your access to all or part of the Company Properties for any or no reason, including without limitation, any violation of this Agreement.

If Company becomes aware of any possible violations by you of the Agreement, Company reserves the right to investigate such violations.  If, as a result of the investigation, Company believes that criminal activity has occurred, Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.  Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Company Properties, including Your Content, in Company’s possession in connection with your use of Company Properties, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that your collection or use of Your Content or personal data or information violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Company, its Registered Users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate.

13. TERM AND TERMINATION.  

13.1 Term.  The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Company Properties, unless terminated earlier in accordance with the Agreement.

13.2 Prior Use.  Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Company Properties or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Company Properties, unless earlier terminated in accordance with the Agreement.

13.3 Effect of Termination.  Termination of any Service includes removal of access to such Service and barring of further use of the Service.  Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases.  Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content.  All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

13.4 No Subsequent Registration.  If your registration(s) with, or ability to access, Company Properties or any other Company community, is discontinued by Company due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Company Properties or any Company community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Company Properties to which your access has been terminated.  In the event that you violate the immediately preceding sentence, Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

14. INTERNATIONAL USERS.  

Company Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country.  These references do not imply that Company intends to announce such Services or Content in your country.  Company Properties are controlled and offered by Company from its facilities in the United States of America. Company makes no representations that Company Properties are appropriate or available for use in other locations.  Those who access or use Company Properties from other countries do so at their own volition and are responsible for compliance with local law.

15. DISPUTE RESOLUTION. 

 Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully.  It requires U.S. users to arbitrate disputes with Company and limits the manner in which you can seek relief from us.

15.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify,; and (b) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).  This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.  

15.2 Arbitration Rules and Forum The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.  To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent [1209 ORANGE ST, WILMINGTON, DE 19801].  The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.  Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267.  If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.  If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Company will pay them for you.  In addition, Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.  

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location.  Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. 

15.3 Authority of Arbitrator.  The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable.  The arbitration will decide the rights and liabilities, if any, of you and Company.  The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and us.  

15.4 Waiver of Jury Trial.  YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  You and Company are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 (Application of Arbitration Agreement) above.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would.  However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.  

15.5 Waiver of Class or Other Non-Individualized Relief.  ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.  If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of California.  All other disputes, claims, or requests for relief shall be arbitrated.  

15.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: [2345 Yale Street Palo Alto, California, 1ST Floor, 94306 USA, within thirty (30) days after first becoming subject to this Arbitration Agreement.  Your notice must include your name and address, your Company username (if any), the email address you used to set up your Company account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement.    If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you.  Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

15.7 SeverabilityExcept as provided in Section 15.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

15.8 Survival of AgreementThis Arbitration Agreement will survive the termination of your relationship with Company.

15.9 Modification.Notwithstanding any provision in this Agreement to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Company at the following address: 2345 Yale Street Palo Alto, California, 1ST Floor, 94306 USA,

16. THIRD-PARTY SERVICES.

16.1 General.  The Services may rely on or interoperate with third party products and services. These third party products and services are beyond the control of Company, but their operation may impact or be impacted by the use and reliability of the Services. You acknowledge and agree that: (i) the use and availability of the Services may depend on third party product vendors and service providers, (ii) these third party products and services may not operate in a reliable manner 100% of the time, and they may impact the way that the Services operate, and (iii) Company is not responsible for damages and losses due to the operation of these third party products and services.

16.2 Third Party Service Providers Used By Company. You acknowledge that Endo uses third party service providers to enable some aspects of the Services – such as, for example, data storage, synchronization, and communication through Microsoft Azure, and mobile device notifications through mobile carriers. YOU AGREE NOT TO RELY ON THE SERVICES FOR ANY LIFE SAFETY OR TIME-CRITICAL PURPOSES. 

16.3 Third Party Products and Services that Work With the Services. Company may provide the opportunity for you to interface with one or more third party products and services, while using the Services (“Third Party Products and Services”). You decide whether and with which Third Party Products and Services you wish to interface. Your explicit consent and authorization is required for this interface, and is revocable by you at any time. Once your consent is given for a particular Third Party Product and Service, you agree that Company may exchange information and control data regarding you and your products, including your personal information, in order to enable the interface you have authorized. Once this information is shared with the particular Third Party Product and Service, its use will be governed by the third party’s privacy policy and not by the Company’s Privacy Policy. You acknowledge that Third Party Products and Services that you connect to your Account or interface with are not Company products and services and you acknowledge and agree that Company does not control, and that these Terms of Use do not apply to, any Third Party Products and Services. Use of any Third Party Products and Services is governed by separate terms and conditions provided by the operator(s) of the applicable Third Party Products and Services. Therefore, you acknowledge and agree that Company bears no liability for the use of any Third Party Products or Services or for any personal injury, death, property damage, interruption of service, downtime, data loss, or other harm or losses arising from or relating to your use of any Third Party Products and Services. You should contact the applicable third party with any questions about its products and services.  

16.4 Third Party Service Provider.  The Company uses third party service providers for payment services (e.g., card acceptance, merchant settlement, and related services) (each a “Third Party Service Provider”).  By buying or selling on any Company Property, you agree to be bound by the Third Party Service Provider’s privacy policy and its terms of service agreement and hereby consent and authorize the Company and the Third Party Service Providers to share any information and payment instructions you provide with one or more Third Party Service Provider(s) to the minimum extent required to complete your transactions.

16.5 Open Source.  Certain items of independent, third party code may be included in the Services that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in these Terms of Use limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in these Terms of Use restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL.

16.6 Third-Party Websites, Applications and Ads. Company Properties may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”).  When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left Company Properties and are subject to the terms and conditions (including privacy policies) of another website or destination.  Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Company.  Company is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads.  Company provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith.  You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, this Agreement and our policies no longer govern.  You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party. 

16.7 App Stores.  You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store (the “App Store”).  You acknowledge that the Agreement is between you and Company and not with the App Store.  Company, not the App Store, is solely responsible for Company Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement).  In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access.  You also agree to pay all fees (if any) charged by the App Store in connection with Company Properties, including the Application.  You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the App Store when using any Company Property, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.

16.8 Accessing and Downloading the Application from iTunes.  The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store: 

(a) You acknowledge and agree that (i) the Agreement is concluded between you and Company only, and not Apple, and (ii) Company, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service. 

(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company. 

(d) You and Company acknowledge that, as between Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

(e) You and Company acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Company and Apple, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement. 

(f) You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof. 

(g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

17. GENERAL PROVISIONS.

17.1 Electronic Communications.  The communications between you and Company may take place via electronic means, whether you visit Company Properties or send Company e-mails, or whether Company posts notices on Company Properties or communicates with you via e-mail.  For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).

17.2 Release.  You hereby release Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Company Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Company Properties.  If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”  The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Company Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.

17.3 Assignment.  The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

17.4 Force Majeure.  Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. 

17.5 Questions, Complaints, Claims.  If you have any questions, complaints or claims with respect to Company Properties, please contact us at: info@endomedical.co. We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

17.6 Exclusive Venue.  To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in [the State of California].

17.7 Governing Law.  The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of CALIFORNIA, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT. 

17.8 Choice of Language.  It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.  

17.9 Notice.  Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address.  In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to Company at the following address: info@endomedical.co.  Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

17.10 Waiver.  Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

17.11 Severability.  If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

17.12 Export Control.  You may not use, export, import, or transfer Company Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Company Properties, and any other applicable laws.  In particular, but without limitation, Company Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Company Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Company Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.  You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations. 

17.13 Consumer Complaints.  In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

17.14 Entire Agreement.  The 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 between the parties with respect to such subject matter.

Return Policy

Our 10 day return policy is enforceable upon provision of proof from the client that the PNOĒ Metabolic Analysis Device is not able to deliver the accuracy demonstrated by its independent validation study. Malfunctions caused by incorrect usage or damages resulting from transportation do not constitute proof of the device’s inability to deliver the expected accuracy. 

Our 2 year warranty covers all costs associated with reparations for PNOĒ Metabolic Analysis Device caused by non incidental damages provided that the client has adhered to the recommended operating procedures.

Cancellation Policy

Upon payment of this invoice, funds are allocated towards the production of the unit. Cancellation of the order will result in a 35% decrease of the refunded amount.

In the case that a refund is requested the value of the certification that is released upon payment is non-refundable and consists of 1000$ per user.

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