Effective as of May 20, 2020
This Agreement is between Expedite LLC dba Oxyensure (“Oxyensure,” “we” or “us”) and you concerning your use of the Oxyensure website located at www.oxyensure.com and the pages and the other Oxyensure websites accessible from such site (collectively, our “Website”) and any information or services provided by Oxyensure in connection with the products offered for sale or rental through the Website (such information and services, together with the Website, are referred to collectively as the “Service” or “Services”).
We refer to each user of our Service, and any personal representative, care giver or guardian acting on behalf of such user, as “you” or as a “User.”
By using (including accessing) any Oxyensure Service or by clicking “SUBMIT” or “PLEASE HAVE AN AGENT CALL ME!” or by providing your phone number to Oxyensure, you acknowledge that you have read and agree to these Terms and Conditions and authorize Oxyensure to contact you via phone, email, text message or mail. Further, you represent and warrant that you are not a resident of a country in the European Union and your use of (and any access to) any Oxyensure Service will be primarily outside of the European Union.
If you enter into a rental purchase agreement with Oxyensure, the terms and conditions of that rental purchase agreement exclusively will control our relationship with you solely as it relates to the rental items covered by the rental purchase agreement.
PLEASE NOTE THAT THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
For your convenience, we have phrased some of the terms of this Agreement in a question and answer format. All of the following terms are a single legal agreement between you and Oxyensure. If a word or phrase is framed in this Agreement by “Quotation Marks” and marked in bold text, it means that the word or phrase may be used again, and it will have the same meaning as set forth in the sentence containing the word or phrase in quotation marks and bold text.
1.Scope of this Agreement; Not Medical or Healthcare Services; Other Disclaimers.
1.1 Oxyensure Services are not medical or healthcare services.
You understand that Oxyensure is not acting as a healthcare professional and does not provide medical, health or other professional services or advice, nor do we verify the accuracy of User Data. You agree that the User or prescription device user, as applicable, is solely responsible for obtaining proper treatment for his or her conditions. You may provide the information and reports received from Oxyensure Services, as applicable, to healthcare providers at your own responsibility.
OXYENSURE DOES NOT OFFER MEDICAL ADVICE OR DIAGNOSES, OR ENGAGE IN THE PRACTICE OF MEDICINE. OUR PRODUCTS AND SERVICES ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT AND IS OFFERED FOR INFORMATIONAL PURPOSES ONLY. PRODUCTS AND SERVICES PROVIDED BY THIRD-PARTIES LINKED THROUGH OXYENSURE.COM ARE SUBJECT TO SEPARATE TERMS AND CONDITIONS.
1.2 Are there additional terms that apply to your use of Oxyensure Services?
Yes, in addition to the terms set forth in this Agreement, any other terms and conditions that we post or make available through any product, service, or software application, or otherwise make available to you, apply to your use of Oxyensure Services and are incorporated into and made a part of this Agreement. These additional terms include (but are not limited to) the following:
- any description located on our Website;
- third-party copyright and other notices located on our Website;
- Oxyensure copyright and trademark notices located on our Website;
- any documentation provided by Oxyensure;
- any consent or authorization you sign in connection with the Services or your use of products or services sold, rented, or provided by Oxyensure;
If you enter into a rental purchase agreement with Oxyensure, the terms and conditions of that rental purchase agreement exclusively will control our relationship with you solely as it relates to the rental items covered by the rental purchase agreement.
1.3 What terms and conditions apply to opportunities to engage with Diagnostic or Prescription Pathways?
While Oxyensure does not engage in the practice of medicine, as a convenience to you and in order to inform you about access to alternative options for diagnosis and treatment of respiratory and sleep conditions, Oxyensure may facilitate an introduction to groups of licensed physicians with whom you may choose to establish an independent physician-patient relationship (“Telehealth Providers”). Oxyensure is not party to these relationships. Telehealth Providers have no affiliation with Oxyensure. Oxyensure has no financial interest in the Telehealth Providers and has no control over operational elements such as pricing decisions, physician selection, or licensing/compliance matters. Oxyensure in no way influences medical directives made by Telehealth Providers and Telehealth Providers are in no way compensated financially or otherwise by Oxyensure for any services or medical directives that Telehealth Providers provide to you.
All services provided to you by Telehealth Providers linked through Our Website are independent of Oxyensure, and are subject to the Telehealth Provider’s terms and conditions. Under no circumstances are Oxyensure or its affiliates responsible for the services that you receive from a Telehealth Provider.
Should you choose to engage with any Telehealth Provider, you should understand the following:
- Any relationship between you and any individual (including any physician or other licensed health care provider) working for a Telehealth Provider is solely at your discretion.
- Oxyensure is not a party to any physician-patient relationship that may be established between you and a Telehealth Provider or any other health care provider.
- Should you rely on services from a Telehealth Provider, this in no way obligates you to further engage with Oxyensure or otherwise limit your personal healthcare decisions.
- Any fees that you pay to a Telehealth Provider are set regardless of diagnosis or directives. Oxyensure has no influence whatsoever over the fees charged to you by a Telehealth Provider.
- Your reliance on the services of a Telehealth Provider is solely at your own risk and you assume full responsibility for all risks associated with obtaining services from a Telehealth Provider. Oxyensure explicitly disclaims all warranties about the services provided by any Telehealth Provider.
- You are in no way obligated to use a Telehealth Provider in order to engage with Oxyensure or use our products or Services. Oxyensure will take direction from any licensed physician with whom you have established a physician-patient relationship.
1.4 Where can you use the Oxyensure Services?
Only US residents may use the Oxyensure Services, the Oxyensure Services are provided from the United States.
1.5 Who should you contact if you have questions about your product, service, or software application provided by Oxyensure?
If you have purchased a product or service from Oxyensure and have questions concerning the product or service, please contact Oxyensure.
1.6 Will Medicare or Medicaid reimburse me for Oxyensure’s Products or Services?
No. Medicare and Medicaid will pay for medical equipment and supplies only if a supplier has a Medicare or Medicaid supplier number. Oxyensure does not have a Medicare or Medicaid supplier number. Medicare or Medicaid will not pay for any medical equipment and supplies we sell or rent to you. You will be personally and fully responsible for payment.
2.1 Can Oxyensure change the terms of this Agreement?
Yes, subject to applicable law, Oxyensure can change the terms of this Agreement by notifying you of such changes by any reasonable means, including by posting a notice of new terms to our Website. Your clicking “accept” to the new terms or your continued use of any Oxyensure Service after any such change is acceptance of the new terms. Any such changes will not apply to any dispute between you and us arising prior to the date on which we notified you of the revised Agreement incorporating such changes. If you do not agree with the new terms, you have the right to discontinue your use of the Oxyensure Services as described in Section 6.2 below (titled “Can you terminate your use of Oxyensure Services or your use of Software Apps?”).
2.2 Can Oxyensure change Oxyensure Services?
Oxyensure Services, and the business, development and activities of Oxyensure, are subject to change as determined from time to time by Oxyensure in its discretion by notifying you of such changes by any reasonable means, including our posting of a notice on our Website or otherwise providing you with notice through the applicable Oxyensure Service. Subject to applicable law, your continued use of the applicable Oxyensure Service after any such change is acceptance of the change. We reserve the right to introduce new features or functionality for which the payment of fees may be required. If you do not agree with the changes, as described in Section 6.2 below (titled “Can you terminate your use of Oxyensure Services or your use of Software Apps?”), you have the right to discontinue your use of the Oxyensure Services.
3. What is Required for you to use our Website?
Our Website is accessible through the internet by any smart phone or other smart device (we refer to each as a “Smart Device”) or computer, in each case with a compatible browser. You are responsible for each computer or Smart Device you use to access our Website, including providing and maintaining properly running compatible updated software, a suitable internet connection, and an appropriate firewall and virus scanning software.
4. Using our Services
4.1 What rights do you have to the Oxyensure Services?
Upon your acceptance of this Agreement, and so long as you comply with the terms of this Agreement, until either party terminates this Agreement, Oxyensure grants you the personal, limited and nonexclusive right to use our “Website” for your personal noncommercial use, in accordance with the terms of this Agreement.
Oxyensure and the third parties from which we license certain technology (“licensors”) own all right, title and interest to the Oxyensure Services; the information, artwork and other content available through or at Oxyensure Services; the processes, methodologies, documents and other materials we use to provide the Oxyensure Services or that we provide to you in connection with your use of Oxyensure Services; and all patent, copyright, trademark, trade secret, and other rights of any nature arising from or relating in any way to Oxyensure Services (“Intellectual Property Rights”).
Oxyensure Services are subject to the notices of Intellectual Property Rights provided by Oxyensure on our Website, and you must abide by the requirements in all of such notices. All Intellectual Property Rights are reserved by Oxyensure and its licensors, and no Intellectual Property Rights are granted to you except as set forth in this Section 5.7. Trademarks, servicemarks, trade dress, logos, names and other symbols identifying Oxyensure, Oxyensure Services, and the goodwill relating thereto, are owned by Oxyensure and its licensors. You may not remove or alter any notice provided by Oxyensure on or in connection with Oxyensure.
4.2 What third party requirements do you have to comply with?
Oxyensure Services may include software, data or other items licensed to us by third parties. Your use of such third party items is subject to the provisions of this Agreement, except as required otherwise by the applicable licensor. You must comply with the additional license provisions required by vendors of such third party items posted by us at our Website or which we otherwise provide or make available to you, as they are amended by us from time to time. The version of such license provisions that is applicable to your use is incorporated into and made a part of this Agreement.
4.3 What age do you have to be to use Oxyensure Services?
By agreeing to this Agreement, you are representing that you are eighteen (18) years old or older and have the legal capacity to enter into this Agreement.
4.4 Can you use third party software or equipment with Oxyensure Services?
Oxyensure does not endorse, recommend or validate any third party software or equipment for use with Oxyensure Services. Any use by you of any such third party software or equipment is at your sole risk. We have no responsibility or liability arising from your use of such third party software or equipment, such as damage, problems, inaccuracies or malfunctions in Oxyensure Services arising from such use.
4.5 What other restrictions apply to your use of Oxyensure Services?
You will not, and you will not permit anyone under your control to, do or attempt to do any of the following:
- use Oxyensure Services to harm, threaten, or harass any person or organization;
- use Oxyensure Services for commercial purposes or to benefit any third party;
- damage, disable, overburden, interfere with or impair Oxyensure Services (or any network or device connected to a Oxyensure Service);
- enable unauthorized third party applications to access Oxyensure Services or Website;
- share your registered information or otherwise authorize a third party to access or use Oxyensure Services on your behalf unless we provide an approved mechanism;
- sublicense or transfer any of your rights under this Agreement;
- modify, copy or make derivative works based on any Oxyensure Service;
- reverse engineer or derive the source code for any Oxyensure Service not provided to you in source code form, except to the extent such restriction is expressly prohibited by applicable law;
- create Internet “links” to or from any Oxyensure Service or “frame” or “mirror” any content which forms part of any Oxyensure Service;
- use any automated process or service (such as a bot, a spider, or periodic caching of information) to access or use any Oxyensure Service, or to copy or scrape data from any Oxyensure;
- otherwise use any Oxyensure Service in any manner that exceeds the scope of use granted to you in this Agreement; or
- use unauthorized software or hardware to access any Oxyensure Service or to modify any Oxyensure Service in any unauthorized way (e.g., through unauthorized repairs, unauthorized upgrades or unauthorized downloads).
4.6 What can happen if you misuse the Oxyensure Service?
Misusing a Oxyensure Service, improperly accessing it or the information it processes, or taking other unauthorized actions may put the User (or their User Data) at risk, cause the Oxyensure Service to malfunction, or otherwise prevent or hinder the proper and intended use of the Oxyensure Service. Accordingly, any such misuse is not permitted.
4.7 What happens if you provide feedback to Oxyensure?
You may provide written or verbal feedback, suggestions, comments, or input to us relating to Oxyensure Services or other opportunities for our existing or future activities (“Feedback”). By providing Feedback to us, you grant to us the worldwide, nonexclusive, unrestricted, perpetual, irrevocable (on any basis whatsoever), royalty free right for us to use such Feedback in any way we determine, including through third parties, without any obligation to you for compensation, attribution, accounting or otherwise. You will only provide to us Feedback for which you have the right to grant to us the rights listed in the preceding sentence
4.8 By purchasing products from, registering with or using Oxyensure Services, you are making certain assurances to Oxyensure.
You represent, warrant and agree that all information you provide to us will be true, accurate, current and complete, and you will only use Oxyensure Services for the personal benefit of the applicable User or prescription device user, as applicable, in accordance with this Agreement.
4.9 Oxyensure is not responsible for third party matters.
Without limiting the provisions of this Agreement or expanding the scope of Oxyensure’s responsibilities, Oxyensure is not responsible for outages or defects in power, telecommunications, computers, Smart Devices, third party software and any other event outside of Oxyensure’s direct control.
5. Suspension and Termination of Oxyensure Services
5.1 Can Oxyensure suspend or terminate Oxyensure Services?
To the extent permitted by applicable law, Oxyensure can suspend or terminate any Oxyensure Service, or suspend or terminate your right to use any Oxyensure Service, as it determines for any valid reason. By way of example, we may suspend or terminate a Oxyensure Service if you have, or if we reasonably believe you have, violated this Agreement, or in connection with any event or legal development beyond our control that hinders or prevents our ability to offer any Oxyensure Service. To the extent reasonable, we will notify you at least twenty-four (24) hours in advance of any such suspension or termination. However, if you materially violate this Agreement (including any use of Oxyensure’s resources that exceeds or circumvents Oxyensure’s reasonable restrictions, such as accesses, calls or other uses of any application programming interface or server resources that Oxyensure makes available), we can immediately suspend or terminate your right to use any Oxyensure Service.
5.2 Can you terminate your use of Oxyensure Services?
You may terminate your use of any Oxyensure Service by ceasing your use of the Oxyensure Service.
5.3 What happens if your use of a Oxyensure Service is terminated?
6. Disputes and Governing Law
6.1 Governing Law and Arbitration
Except to the extent prohibited by applicable law, the terms of this Agreement are governed by the laws of the State of California, U.S.A., without regard to its principles of conflicts of law and regardless of your location.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND OXYENSURE, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY (EACH, A “DISPUTE”), WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT OXYENSURE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS. YOU FURTHER AGREE THAT CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND THAT YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (currently available here), as amended by this Agreement. The arbitrator will conduct hearings, if any, by teleconference or video conference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
Some jurisdictions outside the United States may not allow for arbitration of certain Disputes in certain circumstances. To the extent that you are a resident of such jurisdiction, and this arbitration provision is found to be unenforceable by a court within such jurisdiction in connection with a Dispute between you and Oxyensure, such Dispute will instead, to the extent permitted by applicable law, be resolved exclusively in the federal and state courts located in San Diego, California, and you and Oxyensure each waive any jurisdictional, venue or inconvenient forum objections to such courts.
6.2 Notice of Dispute
In the event of a dispute arising under or relating to this Agreement, the disputing party must provide the other party with written notice of the dispute, including the facts giving rise to the dispute and the relief sought by the disputing party. We will provide such notice by email to your email address. You will provide such notice to Oxyensure by email to firstname.lastname@example.org.
6.3 Equitable Relief
Any violation of a party’s intellectual or industrial property rights will cause the non-violating party irreparable harm for which monetary damages are an inadequate remedy, and the non-violating party is entitled to temporary, preliminary and permanent injunctive relief and specific performance without the posting of bond or other security, or if required, the minimum bond or security required.
7.1 EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, OXYENSURE SERVICES ARE PROVIDED “AS-IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, AND YOU USE OXYENSURE SERVICES AT YOUR OWN RISK.
7.2 EXCEPT TO THE EXTENT THAT SUCH LIMITATION IS PROHIBITED UNDER APPLICABLE LAW, OXYENSURE DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE OR USE, QUIET ENJOYMENT, ACCURACY, OPERATION, COMPLIANCE WITH DOCUMENTATION AND NON-INFRINGEMENT. OXYENSURE DISCLAIMS, AND THIS AGREEMENT DOES NOT INCLUDE, THE PROVISIONS OF THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, THE UNIFORM COMMERCIAL CODE, THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, AND ANY OTHER PROVISIONS IMPLIED INTO THIS AGREEMENT IF NOT DISCLAIMED.
7.3 OXYENSURE DOES NOT MAKE ANY WARRANTIES THAT OXYENSURE SERVICES OR REPORTS PROVIDED BY OXYENSURE, WILL MEET YOUR REQUIREMENTS, BE RETRIEVABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED.
7.4 OXYENSURE DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF OXYENSURE SERVICES.
7.5 OXYENSURE DOES NOT WARRANT ANY THIRD PARTY DEVICE, SMART DEVICE, SOFTWARE, SERVICE OR DATA THAT YOU MAY USE IN CONNECTION WITH ANY OXYENSURE SERVICE, WHETHER OR NOT SUCH THIRD PARTY ITEM IS DESCRIBED IN, OR AVAILABLE OR CAN BE CONNECTED TO THROUGH, ANY OXYENSURE SERVICE.
7.6 NO INFORMATION OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH OXYENSURE OR OXYENSURE SERVICES WILL CREATE ANY WARRANTY
7.7 OXYENSURE DOES NOT ASSUME ANY OBLIGATION TO, AND DOES NOT WARRANT THAT IT WILL, CREATE OR INCLUDE ADDITIONAL FEATURES OR FUNCTIONALITY FOR OXYENSURE SERVICES.
7.8 EXCEPT AS INCLUDED IN ANY OXYENSURE PRODUCT LABELING, AND WITHOUT LIMITING YOUR RIGHTS UNDER APPLICABLE LAW, IF YOU ARE DISSATISFIED WITH ANY PORTION OF OXYENSURE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE THEIR USE.
8. Liability Limitations and Your Responsibility
8.1 TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL OXYENSURE’S AFFILIATES, LICENSORS, SUPPLIERS AND OTHER THIRD PARTIES WITH WHICH OXYENSURE HAS A CONTRACTUAL RELATIONSHIP (INCLUDING ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AND AGENTS) HAVE ANY LIABILITY WHATSOEVER ARISING FROM OR RELATING TO OXYENSURE SERVICES OR THIS AGREEMENT, WHETHER FOR DIRECT OR ANY OTHER TYPE OF DAMAGES WHATSOEVER.
8.2 EXCEPT TO THE EXTENT THAT SUCH LIMITATION IS PROHIBITED UNDER APPLICABLE LAW, NEITHER OXYENSURE, ITS AFFILIATES, NOR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS (COLLECTIVELY, “OXYENSURE PARTIES”) SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE OF OR INABILITY TO USE OXYENSURE SERVICES.
8.3 EXCEPT TO THE EXTENT THAT SUCH LIMITATION IS PROHIBITED UNDER APPLICABLE LAW, NONE OF THE OXYENSURE PARTIES SHALL BE LIABLE FOR ANY CONSEQUENTIAL, UNFORESEEABLE, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR DAMAGES RESULTING FROM LOSS OF DATA OR BUSINESS INTERRUPTION WHETHER THE CLAIM OR DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), EXTRA-CONTRACTUAL LIABILITY, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF OXYENSURE, ITS AFFILIATES OR A PERSON AFFILIATED WITH EITHER OF THEM HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES EXCLUDED IN THIS SECTION 8, AND EVEN IF SUCH EXCLUSIONS CAUSE THIS AGREEMENT OR ANY REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE.
8.4 EXCEPT TO THE EXTENT THAT SUCH LIMITATION IS PROHIBITED UNDER APPLICABLE LAW, NONE OF THE OXYENSURE PARTIES SHALL BE LIABLE FOR TOTAL DAMAGES FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, OXYENSURE SERVICES IN AN AGGREGATE AMOUNT GREATER THAN $500.
8.5 EXCEPT TO THE EXTENT THAT SUCH EXCLUSION OR LIMITATION IS PROHIBITED UNDER APPLICABLE LAW, NONE OF THE OXYENSURE PARTIES SHALL BE LIABLE FOR THE ACTIONS OR OMISSIONS OF A USER OR ANY THIRD PARTY.
8.6 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS (INCLUDING, WITHOUT LIMITATION, THOSE SET OUT IN SECTION 8) MAY NOT APPLY TO YOU, AND YOU MAY HAVE CERTAIN ADDITIONAL RIGHTS. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT OUR LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW, AND THIS AGREEMENT WILL BE DEEMED MODIFIED TO THE MINIMUM EXTENT NECESSARY TO COMPLY WITH SUCH APPLICABLE LAW.
8.7 Your Responsibility.
Except to the extent prohibited under applicable law, you agree to indemnify, defend and hold harmless Oxyensure, our affiliates, licensors, suppliers and other contract relationships (including the officers, directors, employees, consultants, and agents of each) from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from (1) any information you submit, post or transmit through Oxyensure Services, (2) your use of Oxyensure Services, (3) your violation of this Agreement, or (4) your violation of any rights of any other person or entity.
9. Notices; Questions or Complaints.
Except as expressly provided elsewhere in this Agreement, we will provide any notice under this Agreement by email to your email address. You will provide any notice under this Agreement to Oxyensure (or contact us regarding any question or complaint) by emailing email@example.com. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
In the event that any court holds any provision of this Agreement to be void, invalid or unenforceable, such provision will be modified to the minimum extent necessary to be effective, valid and enforceable while preserving the original intentions of the parties to the greatest extent possible, and the other provisions of this Agreement will remain in full force and effect and enforceable according to their terms.
We may assign this Agreement in whole or in part at any time without notice (except to the extent such notice is mandatory under applicable law, in which case such notice may be made via a posting to our Website). You may not assign this Agreement or transfer any rights to use Oxyensure Services.
We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from OnGuard Online. Please note that Oxyensure does not endorse any of the products or services listed on such sites.
13. Relationship; No Third Party Beneficiaries.
Our relationship with you is as an independent contractor, and nothing in this Agreement creates an agency or partnership. Except for Oxyensure’s licensors, there are no third party beneficiaries to this Agreement.
14. Forward-Looking Statements.
The Oxyensure Services may contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, and subject to the safe harbor created by the Securities Litigation Reform Act of 1995. Such statements include declarations regarding Oxyensure’s intent, belief, or current expectations and those of Oxyensure’s management. Any such forward-looking statements are not guarantees of future performance and involve a number of risks, uncertainties and other factors, some of which are beyond Oxyensure’s control; actual results could differ materially from those indicated by such forward-looking statements. Important factors that could cause actual results to differ materially from those indicated by such forward-looking statements include, but are not limited to: (a) that the information is of a preliminary nature and may be subject to further adjustment; (b) those risks and uncertainties identified as “risk factors” in our Annual Report on Form 10-K; and (c) the other risks detailed from time-to-time in our reports and registration statements filed with the Securities and Exchange Commission. Except as required by law, we undertake no obligation to revise or update publicly any forward-looking statements, whether as a result of new information, future events or otherwise.
15. Complete Agreement.
This Agreement is the complete and final agreement between the parties relating to Oxyensure Services; supersedes any prior agreements or communications between the parties; and may only be modified as described in this Agreement (see Section 2.1 (titled “Can Oxyensure change the terms of this Agreement?”)). Failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement has been drafted in English at the express request of the parties. Ce contrat a été rédigé en anglais à la demande expresse des parties.
16. Copyright Infringement Claims.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Oxyensure Services infringe your copyright, you (or your agent) may send to Oxyensure a written notice by mail or by e-mail requesting that Oxyensure remove such material or block access to it. If you believe in good faith that someone has wrongly submitted to us a notice of copyright infringement involving content that you made available through any Oxyensure Service, the DMCA permits you to send to Oxyensure a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA.
Notices and counter-notices must be sent in writing to Oxyensure e-mail at firstname.lastname@example.org.
We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice. You may have equivalent rights under other applicable laws.
In accordance with the DMCA and other applicable law, Oxyensure has adopted a policy of terminating, in appropriate circumstances, Oxyensure Service users who are deemed by Oxyensure to be repeat infringers. Oxyensure may also at its sole discretion limit access to the Oxyensure Service and/or terminate the accounts of any Oxyensure Service users who infringe any intellectual property rights of others, whether or not such users are deemed to be repeat infringers.
If you have any questions about this Notice please, send us an email at email@example.com.