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XYON Terms of Use

Effective Date: June 28, 2022

Welcome to XYON! XYON is offered by XYON Health, Inc. (“XYON”, “we,” “us” or “our”), a British Columbia company with offices at Suite 300 – 18 West 4th Ave. Vancouver, BC Canada V5Y 1G3. We hope that XYON will offer you a wonderful experience. Before using any of the services available through XYON, you need to read and agree to these Terms of Use (“Terms”). Please read the Terms carefully and print a copy for your records.

These Terms are entered into by and between you and XYON, and these Terms govern your access to and use of XYON Health, including any content, functionality, services or products offered on, through or in connection with XYONhealth.com (the “XYON Site”) (the collectively, the "Services").

BY CLICKING THE “I AGREE” BUTTON DURING THE ACCOUNT REGISTRATION PROCESS OR USING OTHER ACCEPTANCE METHODS PROVIDED BY OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. ADDITIONALLY, WHEN GENERALLY ACCESSING THE SERVICES, YOUR USE AND CONTINUED ACCESS OF THE SERVICES SIGNIFIES YOUR ACCEPTANCE TO THESE TERMS. IF YOU ARE UNWILLING TO BE BOUND BY THESE TERMS, DO NOT ACCESS OR USE THE SERVICES OR CREATE AN ACCOUNT.

XYON IS NOT A HEALTHCARE PROVIDER. THE SERVICES ARE NOT INTENDED TO BE USED FOR URGENT OR EMERGENT HEALTHCARE NEEDS. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, PLEASE DIAL 911.

ARBITRATION NOTICE: (This may not apply to you if applicable law prohibits it.) PLEASE BE AWARE THAT THE TERMS CONTAIN PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND XYON HAVE AGAINST EACH OTHER ARE RESOLVED AND LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS THAT YOU HAVE AGAINST XYON TO BINDING AND FINAL ARBITRATION. TO THE FULLEST EXTENT PERMITTED BY LAW, UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN ACCORDANCE WITH THESE TERMS: (i) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST XYON ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (ii) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION PROVISIONS SET FORTH IN THESE TERMS COULD AFFECT YOUR RIGHT TO PARTICIPATE IN CLASS ACTION LITIGATION. PLEASE SEE THE SECTION TITLED “INDEPENDENT ARBITRATION AGREEMENT” FOR MORE INFORMATION REGARDING THESE ARBITRATION PROVISIONS, INCLUDING HOW TO OPT OUT OF ARBITRATION.

I. Changes to Services and Terms

The Effective Date of these Terms is set forth at the top of this webpage. We may change the Services or these Terms from time to time in our discretion. Changes to the Terms will be posted to this webpage. To the fullest extent permitted by law, any posted changes will be binding on you upon their posting. We encourage you to return to this webpage frequently so that you are aware of our current Terms. Your continued use of any of the Services after the Effective Date constitutes your acceptance of the amended Terms. The amended Terms supersede all previous versions.

II. XYON Services

XYON is not a healthcare providernor does it practice medicine or pharmacy. XYON offers health and wellness solutions for men (“Customers”). As part of its offering, on behalf of Customers who are seeking treatment for certain conditions, XYON facilitates telehealth appointments (“Telehealth Services”) between Customers and independent healthcare providers who may be able to provide treatment to Customers (“Telehealth Providers”). If a Telehealth Provider prescribes a medication to a Customer, then, on behalf of the Customer, XYON also facilitates the communication of the prescription to an independent pharmacy (“Pharmacy Providers”) that can fill, dispense and deliver the medication to the Customer (“Pharmacy Services”). XYON’s Services include facilitating the Telehealth Services and Pharmacy Services provided by the Telehealth Providers and Pharmacy Providers, respectively.

All Telehealth Providers and Pharmacy Providers are third party service providers. XYON does not control, supervise or interfere with the practices of such third parties. XYON only processes payment for services rendered by Telehealth Providers and Pharmacy Providers to Customers on the Customer’s behalf. We are not responsible for any acts or omissions of, or recommendations provided by, such third parties. Such third parties are solely responsible for their provision of related services to you.

XYON’s Services are intended for men who have reached the age of majority in the jurisdiction in which they reside. Please note that the Telehealth Services and Pharmacy Services are only available in certain states in the United States (see listing on the Site), the Province of British Columbia, and the Province of Ontario (“Telehealth Jurisdictions”). If you are located outside of the Telehealth Jurisdictions, XYON will be unable to facilitate your request for Telehealth Services or Pharmacy Services.

By using the Services, you are not entering into a healthcare provider-patient relationship with XYON. Any information that XYON collects from or discloses to the Telehealth Provider or the Pharmacy Provider is limited to what is necessary to provide you the Services and such information is only processed with your express authorization and in connection with our direct customer relationship with you. Please refer to the section titled “XYON Privacy Policy” (Section V below) to understand how we process such information. The practices of any third party are subject to such third party’s own policies and procedures and XYON is not responsible for any of the privacy or data security practices of such third parties.

III. Financial Responsibility for Services

XYON is not enrolled with, and is not a participating provider with, any federal, state, provincial, or territorial healthcare programs (e.g., Medicare and Medicaid, the BC Medical Services Plan, the Ontario Health Insurance Plan) or other health insurer. By agreeing to use the Services, you acknowledge and agree that (1) you are explicitly choosing to obtain Services, Telehealth Services, and Pharmacy Services on a cash basis outside of any federal, state, provincial, territorial or other healthcare program and you have sole financial responsibility for all Services, Telehealth Services and Pharmacy Services provided to you by, through or in connection with the Services, and (2) neither you nor XYON will submit a claim for reimbursement to any federal, state, provincial, or territorial healthcare program or other health insurer for the costs of the Services, Telehealth Services and Pharmacy Services.

For greater certainty, the Services, Telehealth Services, and Pharmacy Services provided to you are elective, may not be medically necessary and are not insured benefits or services under any federal, state, provincial, or territorial healthcare programs in the jurisdiction in they are offered.

IV. XYON Privacy Policy

Please review our privacy policy (“Privacy Policy”) to understand how we process information collected about you, including what information we collect through our Services, how such information is used, and how such information may be shared.

When you register an Account through the Services, you are creating a direct customer relationship with XYON that enables you to access and/or utilize the various functions of the Services as a user. As part of the registration process for an Account and/or use of certain Services, you will provide to us your personal information that we may collect, use and disclose in accordance with our Privacy Policy.

You may also provide certain health or medical information in connection with the Telehealth Services and Pharmacy Services. XYON is not a healthcare provider and is not regulated by the Health Insurance Portability Act of 1996 and its implementing regulations (“HIPAA”) or provincial health information privacy legislation. To facilitate the Telehealth Services and Pharmacy Services, you authorize the Telehealth Provider and Pharmacy Provider to share with XYON, on your behalf, and for XYON to share with the Telehealth Provider and Pharmacy Provider, your personal information including your health history, photographs, whether or not you were issued a prescription and if so, the medication that was prescribed. This is necessary for us to process payments for the Services and otherwise provide Services. Such information is not protected health information as that term is defined in HIPAA when maintained and used by XYON for such purposes. Any such information processed by XYON shall be in accordance with our Privacy Policy. You may revoke this authorization at any time by canceling your Account or contacting XYON.

Your health or medical information may also be maintained by the Telehealth Provider or Pharmacy Provider who may be a “covered entity” under HIPAA or may be subject to other applicable health information privacy legislation. The Telehealth Provider or Pharmacy Provider (who are separate from XYON) will protect your health or medical information in accordance with their own respective Notice of Privacy Practices.

V. Intellectual Property

The Services and the information, files, documents, text, photographs, images, audio, and video contained in the therein, including any material made available for download by us, whether through the XYON Site, App Store or otherwise (collectively, the “Content”) are the property of us or our licensors, as applicable. The Services and Content are protected by United States and international copyright and trademark laws. The Content may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized or approved in writing by us. All rights not expressly granted herein are reserved to us and our licensors.

XYON’s company name, the XYON logo, and all related names, logos, product and service names, designs, and slogans are trademarks of XYON or its affiliates or licensors. You must not use such marks without the prior written permission of XYON. All other names, logos, product and service names, designs, and slogans on the Services are the trademarks of their respective owners.

VI. Service Access and Limitation

Subject to the use restrictions set forth below, these Terms grant you a limited, non-exclusive right to access and make personal use of the Services, subject to these Terms. The Services, and any part thereof may not be reproduced, copied, framed or otherwise exploited for any commercial purpose without the express prior written consent of XYON and/or its licensors.

You may not:

  1. Modify, disassemble, decompile or reverse engineer the Services except to the extent that such restriction is expressly prohibited by law.
  2. Rent, lease, loan, resell, sublicense, distribute or otherwise transfer your access to the Services to any third party.
  3. Remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services, features that prevent or restrict use or copying of any content accessible through the Services or features that enforce limitations on use of the Services.
  4. Modify copies of any materials from the Services.
  5. Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
  6. Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Services.

VII. Use Restrictions

You agree not to use the Services to:

  • Register for more than one Account or register or operate an Account on behalf of another person;
  • Impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, or your affiliation with or authority to act on behalf of any person or entity;
  • Upload, post, transmit, share, store, or otherwise make publicly available through the Services any material that contains private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers, and credit card numbers;
  • Upload, post, transmit, share, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of the Services;
  • Transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation.
  • Use any automated means to access the Services, or collect any information from Services (including, without limitation, robots, spiders, scripts, or other automatic devices or programs);
  • Frame the Services in any manner, utilize framing techniques to enclose any content or other proprietary information, place pop-up windows over any of the Sites’ pages, or otherwise affect the display of any pages on the Site;
  • Engage in the practices of “screen scraping,” “database scraping” or any other activity with the purpose of obtaining content or other information;
  • Use the Services in any manner that could disable, overburden, damage, or impair the Services, or otherwise interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services;
  • Engage in any conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm XYON or users of the Services, or expose them to liability; or
  • Access, use or monitor our Services for benchmarking or any direct competitive purposes.

Additionally, you agree not to:

  • Use any device, software, or routine that interferes with the proper working of the Services;
  • Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services are stored, or any server, computer, or database connected to the Services;
  • Attack the Site via a denial-of-service attack or a distributed denial-of-service attack; or
  • Otherwise attempt to interfere with the proper working of the Services.

We may terminate or disable your access to any or all of the Services for any reason, with or without cause, including if we believe that you have violated or acted inconsistently with these Terms.

VIII. Feedback

If you provide us with any feedback or suggestions regarding the Services (any such feedback referred to herein as “Feedback”), you hereby assign to XYON all rights in the Feedback and agree that XYON shall have the right to use such Feedback and related information in any manner it deems appropriate. XYON will treat any Feedback you provide to XYON as non-confidential and non-proprietary. You agree that you will not submit to XYON any Feedback that contains your confidential health information or confidential health information of any third party, nor will you submit any information that you do not have the rights or permission to submit.

IX. Accessing the Services and Account Security

In order to use certain aspects of the Services, you must set up an account with us (“Account”). To set up an Account, you must provide us with certain personally identifying information and establish a username and password that you will use to access the Services (“Password”).

It is a condition of your use of the Services that all the required information you provide is correct, current, and complete. You agree to promptly inform us of any changes to your Account registration information.

To the fullest extent permitted by applicable law, we reserve the right to take any action that we deem necessary to ensure the security of the Services and your Account including, without limitation, deactivating your Password, terminating your Account, or requesting additional information to authenticate your Account. You are solely responsible for keeping your Password confidential. Anyone with knowledge of or access to your Password can use that information to gain access to your Account. You are solely liable for any claims, damages, losses, costs or other liabilities resulting from or caused by any failure to keep your Password confidential, whether such failure occurs with or without your knowledge or consent. You agree that you will immediately notify us of any suspected or actual unauthorized access to or use of your Password or any other breach of your Account security.

You are also responsible for: (i) all transactions or activities carried out using your Account and Password; and (ii) ensuring that when you access the Account that the system you use to access the Account is secure, is not left unattended unless you have fully exited the Account and that your Password is not retrievable from the system by others.

X. Terms of Sale

XYON facilitates bundled prices for the Telehealth Services and Pharmacy Services provided by the respective third parties (the “Services Fee”). XYON is not providing healthcare nor selling or dispensing prescription products but acts as the conduit for payment between you and the Telehealth Provider and Pharmacy Provider, respectively. Payments will be processed in $CAD for Canadian Residents and $USD for US Residents.

All prices, discounts, and promotions posted on or through the Services are subject to change without notice. The price charged for Services will be the price in effect at the time the order is placed and will be set out in your order confirmation. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling unless otherwise specified. All such taxes and charges will be added to your total. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. To the fullest extent permitted by applicable law, we reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.

Once you create an account and authorize us to charge you on a subscription basis, you agree to be charged for the agreed upon subscription at the interval so indicated. We reserve the right to terminate your subscription, to refuse all or future use of any part of the Services, and not to do business with anyone XYON deems inappropriate in its sole and absolute discretion. You may cancel a subscription at any time up to forty-eight (48) hours before the applicable renewal processing date of your subscription through the Services, by emailing [email protected] directly requesting a cancellation.

Financial transactions including credit card, debit card and other monetary transactions on or through the Services are facilitated by the payment processing application of our designated third-party online payment processing vendor Stripe. Additional information about Stripe, its privacy policy and its information security measures are available at https://stripe.com/en-ca/privacy. You agree that you will only use valid payment methods when placing an order and you represent and warrant that you are authorized to use your designated payment method. XYON does not control and is not responsible for Stripe’s information processing practices, nor is XYON responsible for any fees or charges that your bank or payment card issuer may apply to any purchase.

XI. Shipping; Delivery; Title and Risk of Loss

We will arrange for shipment of your orders unless agreed to otherwise. To the fullest extent permitted by applicable law, title and risk of loss pass to you upon the transfer of the prescription products to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.

XII. Return Policy

WE OFFER NO REFUNDS OR RETURNS FOR ANY PRODUCTS. PRESCRIPTION PRODUCTS ARE DISPENSED BY A PHARMACY PROVIDER AND NOT XYON. XYON ONLY PROCESSES PAYMENT FOR PRESCRIPTIONS ON YOUR BEHALF.

XIII. Email and SMS Messaging

By providing your cell phone number and email address to XYON, you are agreeing to be contacted by or on behalf of XYON at the email address and the telephone number provided, including emails to your email address and text (SMS) messages to your cell phone and other wireless devices, and the use of an automatic telephone dialing system, artificial voice and prerecorded messages, for the purpose of providing the Services and sending you marketing communications. You may also be contacted with marketing announcements about the products and services offered by or made available through the XYON Site.

You may choose to opt-out of receiving email and text messages by updating your preferences in the Services or following the opt-out instructions in the message. If you opt-out, XYON will not send another message to you unless/until you expressly opt in to receiving additional messages. You acknowledge that opting out of receiving text (SMS) messages may impact your experience with the Service(s) that rely on communications via text (SMS) messaging, including the Telehealth Services and Pharmacy Services.

Message and data rates may apply. Your wireless carrier’s standard messaging rates apply to SMS correspondence. Downloadable content may incur additional charges from your wireless carrier. Please contact your wireless carrier for information about charges in your plan. Carriers are not responsible for delayed or undelivered messages.

XIV. App Stores

You acknowledge and agree that the availability of the XYON App if and when one is available, is dependent on the third party from whom you received the XYON App, such as the Android PlayStore or Apple App Store (each, an “App Store”). You acknowledge that this Agreement is between you and XYON and not with the respective App Store. Each respective App Store may have its own terms and conditions to which you must agree before downloading the XYON App. You agree to comply with, and your license to use the XYON App is conditioned upon your compliance with, all applicable terms and conditions of the applicable App Store.

XV. Software Upgrades

You acknowledge that we or our service providers may from time to time issue upgraded versions of the Services and may automatically electronically upgrade the version of the XYON App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree that the terms and conditions of this Agreement will apply to all such upgrades. You agree that XYON will not be liable to you for any such modifications.

XVI. Independent Arbitration Agreement

This provision may not apply to you if it is prohibited by the law of your jurisdiction of residence.

To the extent permitted by applicable law, in consideration and as a condition of your use of the Services, you and XYON (collectively, “the parties”) agree as follows (the “Arbitration Agreement”):

Applicability; Exclusions; Court and Jury Trial Waiver

The parties agree that any and all covered disputes (as defined below) that either party has the legal right to sue for in court, whether now or in the future, shall be subject to final and binding arbitration under the arbitration provisions set forth below. This means that the parties have selected arbitration as the sole and exclusive forum for the parties to sue or be sued in for all covered disputes, regardless of when the dispute first arose or arises and irrespective of the time period(s) involved in the dispute. The term “covered disputes” means all disputes and claims between the parties, including, but not limited to, any disputes or claims: arising out of or relating to these Terms or the Services; relating to the relationship between the parties; arising under the California Consumer Privacy Act (“CCPA”) or any other state, federal, or international law(s) of similar import, and all other claims or disputes under federal, state, and local statutes and laws, municipal ordinances, executive orders, contract, tort, public policy, or common law (judge-made law).

The parties intend to require arbitration of all covered disputes that can lawfully be arbitrated. It is understood by the parties that the term “covered disputes” shall cover and include all such disputes not only between the parties to these Terms but also all disputes or claims against any of your heirs, executors, personal representatives, and assigns, and all such disputes or claims not only against XYON but also against any and all of its affiliates, subsidiaries, and parents collectively and its and their predecessors and successors and any of its and their collective officers, agents, employees, members, shareholders, directors, managers, and attorneys.

Usage of JAMS Streamlined or Comprehensive Arbitration Rules and Procedures; Arbitrator to Decide All Issues; Arbitrator’s Decisions Are Final and Binding

Either party shall initiate arbitration under either the JAMS Streamlined or Comprehensive Arbitration Rules and Procedures (which are currently available for review at https://www.jamsadr.com/adr-rules-procedures/). The arbitrator (and not a court) shall decide all issues in any covered dispute including, but not limited to, issues regarding the non-availability of class arbitration, timeliness, scope of arbitrator’s authority, arbitration procedures, any issues regarding arbitrability of the parties’ dispute, statute of limitations, and all other issues regarding the application, interpretation, and implementation of these Terms. The arbitrator’s decisions shall be final and binding. The parties agree that a court of competent jurisdiction shall have the authority to enter a judgment upon the award made by the arbitrator or to confirm an arbitration award, and any such proceeding shall not itself be deemed a covered dispute.

Selection and Authority of Arbitrator; Full Remedies Available; Enforceability

The parties agree that a single arbitrator shall be selected by the parties consistent with the applicable JAMS Rules and Procedures as they exist at the time of the Terms’ execution. To the fullest extent permitted by law, the arbitrator shall have the power and authority to award any remedy or relief available under applicable law and shall be the sole authority to interpret and apply the provisions of these Terms. The arbitrator shall have the authority to apply any federal, state, local, or municipal law, or executive order, or any common law that the Arbitrator deems applicable to the covered dispute. If there are any ambiguities in these Terms, it is the parties’ intent that all ambiguities be resolved in favor of arbitration. If any provision of this Arbitration Agreement is unenforceable, the remainder of this Arbitration Agreement shall remain in full force and effect.

Class and Collective Action Waiver; No Consolidated or Joint Actions

The parties agree that all covered disputes brought against each other will be arbitrated on an individual basis only and not in a class action arbitration, a collective action arbitration, or on any other group, representative, consolidated, or joint basis. The arbitrator shall have no authority to consider or resolve any covered dispute or any claim or issue in a covered dispute on any basis other than on an individual basis and may not proceed or direct the parties to proceed on a class or collective action basis or consolidate or join one or more covered disputes pertaining to you with any other individual’s or entity’s covered dispute(s). The provisions in this Arbitration Agreement mean that both parties waive their right to commence, become a party to, or in any way participate in any class action, collective action, or group or representative action or claim against the other party or in any such action or claim consolidated or joined with another party, with respect to any covered dispute, and each party agrees to opt-out of or be severed from any such action or proceeding.

Fees, Award

The parties agree that they shall share equally (each pay one-half) the fees and costs of the arbitrator and the fees and costs of arbitration charged by JAMS; except that: (i) in all cases where required by law, XYON will pay the full amount of the arbitrator’s and JAMS arbitration fees and costs; and (ii) where the arbitrator determines that it is appropriate or necessary based on your financial resources, XYON shall pay more than one-half, in an amount to be determined by the arbitrator as fair and equitable. Each party shall bear the cost of his/her/its own legal fees and costs, including but not limited to attorneys’ fees and expert witness fees, subject to any right to recover such fees and costs under applicable law, which the arbitrator shall apply where applicable. In rendering an arbitration award, the arbitrator shall apply applicable and appropriate law and shall award all statutory remedies and penalties, including attorneys’ fees and costs to the extent authorized by and consistent with law. The award shall be in writing and the arbitrator shall set forth the essential findings of fact and law. Either party may request that a transcript and/or recording of the hearing be made.

Time Limitation

As allowed by applicable law, any covered disputes must be brought within one (1) year of the date of the event giving rise to such covered dispute.

Opt-Out

You can opt out of the provisions of this Agreement that require the arbitration of disputes within thirty (30) days of the date that you first agree to any version of this Agreement that requires arbitration of disputes with XYON. To opt out, you must send your name, residence address, and email address together with a clear statement that you want to opt out of the requirement to arbitrate disputes with the applicable party to: XYON Health, Inc., Suite 300 – 18 West 4th Ave. Vancouver, BC Canada V5Y 1G3, ATTN: Arbitration Opt-Out.

XVII. Links to Third Party Sites

Certain parts of the Services, including the XYON Site, may contain links to third-party websites or may give you access to applications, software, or products provided by third parties. Please understand that those third-party websites and products may have different terms of use and privacy policies, and that XYON does not control and is not responsible for the content of such websites or the privacy practices or products of such third parties. The information collected by such third-party websites is not covered by the Privacy Policy.

XVIII. Disclaimer and Limitation of Liability

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. TO THE EXTENT THAT WE MAY NOT DISCLAIM ANY IMPLIED WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DO NOT WARRANT THAT ACCESS TO OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. THE SERVICES ARE PROVIDED BY XYON AND APPLICABLE THIRD PARTIES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF XYON, ITS LICENSORS AND APPLICABLE THIRD PARTIES MAKES NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EXPRESS, LEGAL OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, OR FITNESS FOR PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE OR ANY INFORMATION, CONTENT, PRODUCT OR OTHER MATERIAL PROVIDED ON OR THROUGH THE SERVICES. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL XYON, ITS LICENSORS OR APPLICABLE THIRD PARTIES OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES OF WHATSOEVER KIND ARISING OUT OF ACCESS TO OR USE OF THE XYON SITE, SERVICES, PRODUCTS, OR ANY INFORMATION, CONTENT OR MATERIALS INCLUDED ON THE XYON SITE.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE REMEDY FOR DISSATISFACTION WITH (1) THE SERVICES, (2) CONTENT, (3) INFORMATION CONTAINED WITHIN THE SERVICES, (4) ANY LINKED SITE, OR (5) ANY PRODUCT IS TO STOP USING THE SERVICES AND/OR THOSE PRODUCTS. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, XYON, ITS LICENSORS AND THE APPLICABLE THIRD PARTY’S MAXIMUM LIABILITY TO YOU WITH RESPECT TO YOUR USE OF THE SERVICES AND ANY PRODUCTS PURCHASED BY YOU THROUGH THE SERVICES IS THE EXTENT OF ACTUAL DAMAGES INCURRED BY YOU, NOT TO EXCEED THREE HUNDRED DOLLARS ($300.00). THE FOREGOING LIMITATIONS APPLY EVEN IF THE REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE.

XIX. Indemnification

To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless us and our affiliates, and our respective officers, directors, employees, agents and representatives from and against all losses, expenses, damages, and costs, including reasonable attorney fees, resulting from any violation by you of these Terms or from our termination of your access to or use of the Services. Such termination will not affect either party’s rights or obligations, which accrued before the termination.

XX. Reporting Claims of Copyright Infringement

We take claims of copyright infringement seriously. Where applicable, we will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the XYON Site infringe your copyright, you may request removal of those materials (or access thereto) from the XYON Site by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA Notice") must include substantially the following:

  • Your physical or electronic signature.
  • Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the XYON Site, a representative list of such works.
  • Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
  • Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address).
  • A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law.
  • A statement that the information in the written notice is accurate.
  • A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

Our designated Copyright Agent to receive DMCA Notices is: [email protected].

If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on the XYON Site is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

XXI. Miscellaneous

These Terms shall be governed by the laws of the Province of British Columbia, Canada and you agree to submit to the exclusive jurisdiction of the courts of the Province of British Columbia, Canada in respect of any disputes arising under or in connection with these Terms.

You represent and warrant that you shall comply with all laws and regulations that apply to your access and use of the Services, including, but not limited to, any applicable national laws that prohibit the export or transmission of technical data or software to certain territories or jurisdictions.

We reserve the right to seek all remedies available at law and in equity for violations of these Terms, including the right to remove your account and any contents generated by you through the Services, block your access to any or all aspects of the Services, and block IP addresses.

If any provision of these Terms is held to be unenforceable, the remaining Terms shall remain in full force and effect, and the unenforceable provision shall be replaced by an enforceable provision that comes closest to the intention underlying the unenforceable provision.

No waiver by us of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition. Our failure to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any right.

The parties hereto have expressly requested that this Terms and any ancillary documents be drafted in English. Les parties aux présentes ont expressément requis que les présentes modalités et les documents y afférant soient rédigées en langue anglaise.

The following Sections survive the termination of these Terms of Use: Intellectual Property; Independent Arbitration Agreement; Disclaimer and Limitation of Liability; Indemnification; Miscellaneous.

XXII. How to Contact Us

If you have any questions, comments or notices regarding these Terms, please contact us at [email protected].

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