Terms and Conditions

XSMedical.com Terms of Use Last Updated May 20, 2020 Please review these Terms of Use carefully. They include a binding arbitration clause (see Section 20) requiring you and us to arbitrate our claims instead of suing in court. 1. Introduction Welcome to the family of websites and applications provided by XS Medical LLC. These Terms of Use govern your access to and use of all XS Medical LLC Sites. By using the XS Medical LLC Sites, you affirm that you are of legal age to enter into these Terms of Use, or, if you are not, that you have obtained parental or guardian consent to enter into these Terms of Use. If you violate or do not agree to these Terms of Use, then your access to and use of the XS Medical LLC Sites is unauthorized. DEFINED TERMS: In these Terms of Use: • When we say “XS Medical LLC,” we mean XSMedical.com and and any subsidiaries of XS Medical LLC (including any subsidiaries that XS Medical LLC may form or acquire in the future). We also refer to XS Medical LLC as “we,” “us” and “our.” But when we say “XS Medical LLC Entities,” we mean XS Medical LLC and its affiliates; its and their suppliers, vendors, contractors, and licensors; and its and their directors, officers, employees, and agents. • When we say “XS Medical LLC Sites,” we mean www.XS Medical LLC.com, the XS Medical LLC Apps, and all related functionality, services, and Content offered by or for XS Medical LLC on or through www.XS Medical LLC.com and the XS Medical LLC Apps or the systems, servers, and networks used to make the XS Medical LLC Sites available. • When we say “you” or “your” we mean any user (like you!) of any XS Medical LLC Site. • When we say “Terms of Use,” we mean these Terms of Use and all other terms and policies posted by XS Medical LLC on the XS Medical LLC Sites (and any updates by XS Medical LLC to these Terms of Use and those terms and policies). • A few other key terms used in these Terms of Use: • When we say “Content,” we mean merchandise information, product descriptions, reviews, comments, messages, reviews, communications, feedback, submissions, suggestions, questions, and other information, data, content, and materials (including page headers, images, text, illustrations, formats, logos, hashtags, designs, icons, photographs, software programs, music clips or downloads, video clips, and written and other materials.) • When we say “Ideas,” we mean ideas, concepts, feedback, and know-how that you make available in connection with the XS Medical LLC Sites. • When we say “make available,” we mean post, transit, publish, upload, distribute, transmit, display, provide, or otherwise submit or make available (including through any part of the XS Medical LLC Sites administrated by third-party social media platforms (e.g., Facebook or Instagram) that allow interaction with the XS Medical LLC Sites through the tools offered by such social media platforms). • When we say “Materials,” we mean Content that XS Medical LLC Entities make available on or through the XS Medical LLC Sites, including In Store Now information. IMPORTANT: THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 19 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THIS MEANS THAT YOU AND XS MEDICAL LLC ARE EACH GIVING UP OUR RIGHTS TO SUE EACH OTHER IN COURT OR IN CLASS ACTIONS OF ANY KIND. WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS: While there are important points throughout these Terms of Use, please note the warranty disclaimers and limitations on XS Medical LLC’s liability explained in Sections 16 and 17, respectively. UPDATES: We may update these Terms of Use from time to time by notifying you of such changes by any reasonable means, including by posting a revised Terms of Use through the XS Medical LLC Sites. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Terms of Use incorporating such changes or otherwise notified you of such changes. By continuing to use or access any of the XS Medical LLC Sites after we post any changes, you accept the updated Terms of Use. The “Last Updated” legend above indicates when these Terms of Use were last changed. 2. Your Use of the XS Medical LLC Sites You certify that the Content you provide on or through the XS Medical LLC Sites is accurate and that the information you provide on or through the XS Medical LLC Sites is complete. You are solely responsible for maintaining the confidentiality and security of your account including username, password, and PIN. XS Medical LLC is not responsible for any losses arising out of the unauthorized use of your account. You agree that XS Medical LLC does not have any responsibility if you lose or share access to your device. Any agreement between you and the issuer of your credit card, debit card, or other form of payment will continue to govern your use of such payment method on the XS Medical LLC Sites. You agree that XS Medical LLC is not a party to any such agreement, nor is XS Medical LLC responsible for the content, accuracy, or unavailability of any method used for payment. Your account may be restricted or terminated for any reason, at our sole discretion. Except as otherwise provided by law, at any time without notice to you, we may (1) change, restrict access to, suspend, or discontinue the XS Medical LLC Sites or any portion of the XS Medical LLC Sites, and (2) charge, modify, or waive any fees required to use any services, functionality or other content available through the XS Medical LLC Sites or any portion of the XS Medical LLC Sites. • In connection with the XS Medical LLC Sites, you will not: • Make available any Content through or in connection with the XS Medical LLC Sites that is or may be in violation of the content guidelines set forth in Section 3.C (Prohibited Content) below. • Make available through or in connection with the XS Medical LLC Sites any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software, or equipment. • Use the XS Medical LLC Sites for any commercial purpose, or for any purpose that is fraudulent or otherwise tortious or unlawful. • Harvest or collect information about users of the XS Medical LLC Sites. • Interfere with or disrupt the operation of the XS Medical LLC Sites or the systems, servers, or networks used to make the XS Medical LLC Sites available, including by hacking or defacing any portion of the XS Medical LLC Sites; or violate any requirement, procedure or policy of such servers or networks. • Restrict or inhibit any other person from using the XS Medical LLC Sites. • Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute, or otherwise exploit any portion of (or any use of) the XS Medical LLC Sites except as expressly authorized in these Terms of Use, without XS Medical LLC’s express prior written consent. • Reverse engineer, decompile, or disassemble any portion of the XS Medical LLC Sites, except where such restriction is expressly prohibited by applicable law. • Remove any copyright, trademark, or other proprietary rights notice from the XS Medical LLC Sites. • Frame or mirror any portion of the XS Medical LLC Sites, or otherwise incorporate any portion of the XS Medical LLC Sites into any product or service, unless you obtain XS Medical LLC’s express prior written consent to do so. • Systematically download and store any Materials. • Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather any Materials, or reproduce or circumvent the navigational structure or presentation of the XS Medical LLC Sites, without XS Medical LLC’s express prior written consent. • Cause injury to any person or entity. • Violate any law, rule, or regulation, or these Terms of Use. • You will not use the XS Medical LLC Sites or XS Medical LLC’s name, logo, or brand to (1) send any unsolicited or unauthorized Content, including advertising, promotional materials, email, junk mail, spam, or other form of solicitation; or (2) use any meta tags or other hidden text or metadata utilizing a XS Medical LLC trademark, logo, URL, or product name without XS Medical LLC’s written consent; • You will not attempt to do anything, or permit, encourage, assist, or allow any third party to do anything, prohibited in this Section, or attempt, permit, encourage, assist, or allow any other violation of these Terms of Use. 3. Content and Ideas A. Submitting Content and Ideas XS Medical LLC provides functionality that enables users to make available Content and Ideas in connection with the XS Medical LLC Sites. Any text in Content should be written in English. You acknowledge and agree that you are responsible for all Content and Ideas you make available in connection with any XS Medical LLC Site. You represent and warrant that (1) you have the authority to grant the rights in such Content and Ideas as set forth in these Terms of Use, including in Section 3(B) below; and (2) such Content and Ideas, and the use of such Content and Ideas, will not violate any term of these Terms of Use. This means you will be responsible for the legality, the accuracy, the appropriateness, the originality, and your rights in any such Content and Ideas. B. XS Medical LLC’s Rights to Use Content and Ideas You grant to XS Medical LLC a royalty-free, perpetual, irrevocable, worldwide, unlimited, nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display (publicly or otherwise) any Content that you make available, in any media or medium, and in any form, format, or forum now known or hereafter developed. You further agree that XS Medical LLC is free to use any Ideas for any purpose. XS Medical LLC may sublicense its rights in Content and Ideas through multiple tiers of sublicenses. XS Medical LLC is, and will be, under no obligation (1) to maintain any Content or Idea in confidence; (2) to pay any compensation for any Content or Idea; or (3) to respond to any Content or Idea. You grant to XS Medical LLC the right to use any name associated with any Content or Idea that you make available to XS Medical LLC, although XS Medical LLC has no obligation to exercise such right, or to otherwise provide any attribution for any Content or Idea. C. Prohibited Content You agree that you will not make available Content in connection with the XS Medical LLC Sites that: • is false, fraudulent, inaccurate, or misleading; • contains your full name(s), or any other confidential personally identifiable information of yourself or others; • violates any local, state, federal, or international laws or is otherwise tortious; • is protected by or would infringe on the rights of others (including XS Medical LLC), including any patent, copyright, trademark, trade secret, right of publicity or privacy, or any other proprietary right, without the express prior written consent of the applicable owner; • is obscene, indecent, pornographic, or otherwise objectionable; • is derogatory, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity as determined by XS Medical LLC in its sole discretion; • victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability; • is violent or threatening, or promotes violence against, or actions that are threatening to, any individual or group; • contains advertisements, solicitations, or spam links to other web sites or individuals, without prior written permission from XS Medical LLC; • contains or relates to chain letters or pyramid schemes; • impersonates another business, person, or entity, including XS Medical LLC, its related entities, employees, and agents; • violates any policy posted on the XS Medical LLC Sites; or • is intended to cause harm, damage, disable, or otherwise interfere with the XS Medical LLC Sites or our partners. 4. Monitoring by XS Medical LLC XS Medical LLC will have the right (but not the obligation), in our sole discretion, to monitor, evaluate, and analyze Content, and any use of and access to the XS Medical LLC Sites, including to determine compliance with these Terms of Use and any other operating rules that may be established by XS Medical LLC from time to time. XS Medical LLC will also have the right (but not the obligation), in our sole discretion, to edit, move, delete, or refuse to make available any Content made available through, the XS Medical LLC Sites, for any reason, including violation of these Terms of Use, whether for legal or other reasons. Despite this right of ours, you are solely responsible for any Content you make available, and you agree to indemnify XS Medical LLC for all claims resulting from any Content you make available. 5. Materials Available on the XS Medical LLC Sites XS Medical LLC and its suppliers and licensors may make available various Materials. The Materials are for educational and informational purposes only, and errors may appear from time to time. Before you act in reliance on any Materials, you should confirm any facts that are important to your decision. The XS Medical LLC Entities make no warranty as to the reliability, accuracy, timeliness, usefulness, or completeness of any Materials. If you find an error or notice something that does not look quite right on the XS Medical LLC Sites, we would appreciate it if you let us know by contacting us at help@xsmedical.com. (Your feedback is a big part of what helps XS Medical LLC to get better at helping you!) NO MATERIALS RELATED TO HEALTH, WELLNESS, PRESCRIPTIONS, OR PHARMACEUTICALS ARE INTENDED TO SUBSTITUTE FOR THE DIAGNOSIS, TREATMENT AND ADVICE OF A MEDICAL PROFESSIONAL, AND SUCH MATERIALS DO NOT COVER ALL POSSIBLE USES, PRECAUTIONS, SIDE EFFECTS, AND INTERACTIONS, AND SHOULD NOT BE CONSTRUED TO INDICATE THAT ANY DRUG IS SAFE OR EFFECTIVE FOR YOU. CONSULT THE PRODUCT INFORMATION (INCLUDING PACKAGE INSERTS) REGARDING DOSAGE, PRECAUTIONS, WARNINGS, AND INTERACTIONS, AND YOUR MEDICAL PROFESSIONAL, FOR GUIDANCE BEFORE USING ANY PRESCRIPTION OR OVER-THE-COUNTER DRUG. THE XS MEDICAL LLC ENTITIES ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE MATERIALS. 6. Merchandise The Sites may make available listings, descriptions, and images of goods and services (collectively, “Products”). Such Products may be made available by us or by third parties. We make no representations as to the completeness, accuracy, reliability, validity, or timeliness of such listings, descriptions, or images (including any features, specifications, and prices contained on the Sites). Such information and the availability of any Product are subject to change at any time without notice. We have made efforts to accurately display the attributes of Products, including the applicable colors. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will accurately reflect actual product color or finish. In addition, certain weights, measures, and similar descriptions are approximate and are for convenience only. We sell Products for children’s use; however, these Products are intended for sale to adults. XS Medical LLC has no liability to you for content on the XS Medical LLC Sites that you find to be offensive, indecent, or objectionable. Certain videos, movies, TV programs, video games, computer games, and other Products are labeled with age restrictions or are intended for individuals of certain ages or “mature audiences” only. By ordering an age restricted item, you certify that you satisfy the age restrictions. XS Medical LLC is not responsible for, and cannot guarantee the performance of, goods and services provided by third parties, including any XS Medical LLC Entity, our advertisers, or other third parties to whose sites we link. While our goal is to provide accurate information, product packaging and material may contain more and/or different information than that provided on XS Medical LLC Sites, including the product description, country of origin, nutrition, ingredient, allergen, and other information. Always read labels, warnings, directions, and other information provided with the product before using or consuming the product. For additional information about a product, please contact the manufacturer. Information and statements regarding dietary supplements have not been evaluated by the Food and Drug Administration and are not intended to diagnose, treat, cure, or prevent any disease or health condition. If you find a product is not as described, your sole remedy is to return it in unused condition (excluding products that are not eligible for return), in accordance with XS Medical LLC’s return policy. It is your responsibility to ascertain and obey all applicable local, state, federal, and foreign laws (including minimum age requirements) regarding the purchase, possession, and use of any Product. 7. Third Party Sites References on XS Medical LLC Sites to any names, marks, products, or services of third parties, or links to third-party sites or information, are not an endorsement, sponsorship, or recommendation of the third party or its information, products, or services. XS Medical LLC is not responsible for the content of any third-party linked site or any link contained in a linked site, including any third-party social media or mobile app platform with which the XS Medical LLC Sites operate or otherwise interact, nor is XS Medical LLC responsible for the acts or omissions of any operator of any such site or platform. Your use of any such third-party site or platform is at your own risk, and will be governed by such third party's terms and policies (including its privacy policy). 8. Placing an Order A. Order Acceptance and Billing You represent and warrant that you have the right to use any credit card or other means of payment that you provide to us. By providing payment card information to us, you authorize us to store and use the card as a payment method for purchases made through your XS Medical LLC.com account, including on XS Medical LLC affiliated sites and properties which you access via your XS Medical LLC.com account credentials. XS Medical LLC participates in account update services offered by some banks. If your bank participates in account updater services, these services will automatically update your card number or expiration date in our system when it changes. If you do not want to have your cards automatically updated, you can opt out of these services by contacting your issuing bank. All billing information you provide to us must be truthful and accurate. Providing any untruthful or inaccurate information is a breach of these Terms of Use and may result in cancellation of your order. Prior to accepting an order we may also request additional information from you. Verification of information may be required prior to the acknowledgment or completion of any purchase. We reserve the right to refuse or cancel an order for any reason including limitations on quantities available for purchase, inaccuracies, or errors in product or pricing information, or problems identified by our credit and fraud avoidance department. If your order is canceled after your credit card (or other payment account) has been charged, we will issue a credit to your credit card (or other applicable payment account) in the amount of the charge. We will attempt to contact you if all or any portion of your order is canceled or if additional information is required to accept your order. XS Medical LLC may request a pre-authorization for some orders placed online with a credit or debit card. This pre-authorization will not be billed to you; however, your card issuer may hold this amount for a short period. Your card issuer determines the length of time the pre-authorization is held. We do this to ensure that the card details are still valid and that you have sufficient funds to complete the transaction. By confirming your purchase at the end of the checkout process, you agree to accept and pay for the Products, as well as all shipping and handling charges and applicable taxes. You will be charged for most orders at time of order placement. XS Medical LLC reserves the right, including without prior notice, to limit the quantity of items purchased per person, per household, or per order for any reason. We will attempt to notify you should such limits be applied. XS Medical LLC also reserves the right, at our sole discretion, to prohibit sales to dealers or resellers. For purposes of these Terms of Use, “reselling” will be defined as purchasing or intending to purchase any Product(s) from XS Medical LLC for the purpose of engaging in a commercial sale of the same Product(s) to a third party. B. Pricing Information; Availability XS Medical LLC cannot confirm the price or availability of an item until after your order is placed. Pricing or availability errors may occur on the XS Medical LLC Sites or through Marketplace Retailers. The receipt of an order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a Product. XS Medical LLC reserves the right to cancel any orders containing pricing or availability errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from XS Medical LLC. XS Medical LLC may, at its discretion, either contact you for instructions or cancel your order and notify you of such cancellation. Pricing for products may be different on the XS Medical LLC Sites or from prices available in XS Medical LLC stores or on XS Medical LLC Apps. C. Promotional Codes Promotional codes are limited in nature and may expire or be discontinued with or without notice. Promotional codes are void where prohibited by law. Promotional codes may not be copied, sold, or otherwise transferred. They are not redeemable for cash and are subject to cancellation or change at any time for any reason without notice. We reserve the right in our discretion to impose conditions on the offering of any promotional code. D. Gift Cards The risk of loss and title to any gift cards passes to the purchaser upon our electronic transmission to the recipient or delivery to the carrier, whichever is applicable. XS Medical does not offer Gift Cards at this time. 9. Shipping and Delivery Products will be shipped to an address designated by you, if applicable, so long as such address is complete and complies with the shipping restrictions contained on the XS Medical LLC Sites. All transactions are made pursuant to a shipping contract, and, as a result, risk of loss and title for Products pass to you upon delivery of the Products to the carrier. Delivery of Products purchased from the XS Medical LLC Sites to addresses outside the United States is limited. Some Products also have restricted delivery within the United States. Some Products may be available for pick up at physical XS Medical LLC store locations. Estimated delivery times are determined based on the method of shipping chosen when Products are purchased and the destination of the Products. 10. Export Policy You acknowledge that (a) goods licensed or sold on the XS Medical LLC Sites, and (b) any software or technology purchased, downloaded, or used from the XS Medical LLC Sites, are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured and/or received, and you agree to comply with all applicable laws. You agree, represent, and warrant that no Materials will be accessed from, downloaded in, released in, carried to, transferred to, transshipped through, exported to, or re-exported (collectively “transferred”) to any territory (or national resident thereof), person, entity, or organization to which such Materials could not be transferred directly from the United States or by a U.S. person without a license, including without limitation to any person on the U.S. Treasury Department’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. 11. Intellectual Property The XS Medical LLC Sites and all Materials, and all copyrights, trademarks, trade dress, and other intellectual property rights there (collectively, the “IP”) are owned or controlled by or licensed to XS Medical LLC, and are protected by U.S. and international trademark, copyright, and other intellectual property laws. Materials are licensed (not sold) to end users. Subject to your compliance with these Terms of Use, and solely for so long as you are permitted by XS Medical LLC to use the XS Medical LLC Sites, you may access, view, download, and print the Materials for your personal, non-commercial use only; provided, however, that you (1) retain all copyright, trademark, or other proprietary designations contained on all Materials; (2) do not modify or alter the Materials in any way; and (3) do not provide or make available the Materials to any third party in a commercial manner. In addition, subject to your compliance with these Terms of Use, and solely for so long as you are permitted by XS Medical LLC to use the XS Medical LLC Apps, we permit you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to install and use the XS Medical LLC Apps on a mobile device that you own or control, solely for your personal, non-commercial use. If you fail to comply with any of the terms or conditions of these Terms of Use, you must immediately cease using the XS Medical LLC Apps and remove (that is, uninstall and delete) the XS Medical LLC Apps from your mobile device. No license, right, title, or interest in the XS Medical LLC Sites or any Materials is transferred to you as a result of your use of the XS Medical LLC Sites or your accessing, viewing, downloading, or printing of the Materials. You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, sell, or participate in any sale of or exploit in any way, in whole or in part, any of the Materials or the XS Medical LLC Sites. The XS Medical LLC Sites and Materials may be used only as a personal shopping resource. Any other use, including the reproduction, modification, distribution, transmission, republication, display, or performance, of the XS Medical LLC Sites and the Materials is strictly prohibited. The compilation (meaning the collection, arrangement, and assembly) of the XS Medical LLC Sites and Materials is the exclusive property of XS Medical LLC and is also protected by U.S. and international copyright laws. XS MEDICAL LLC, the XSMEDICAL.COM names and logos, and all other graphics, logos, page headers, button icons, scripts, and service names included in or made available through any of the XS Medical LLC Sites are trademarks or trade dress of XS Medical LLC in the U.S. and other countries. All other marks are the property of their respective companies. 12. Procedure for Making a Claim of Copyright Infringement We respect the intellectual property of others. If you believe that your work has been copied and is accessible on the XS Medical LLC Sites in a way that constitutes copyright infringement, please contact us to report possible copyright infringement at copyright@xsmedical.com. 13. Privacy You acknowledge that any personal information that you provide through the XS Medical LLC Sites will be used by XS Medical LLC in accordance with XS Medical LLC’s Privacy Policy, which may be updated by XS Medical LLC from time to time. If you purchase an item on XS Medical LLC.com sold by a Marketplace Retailer or a XS Medical LLC supplier, XS Medical LLC may share certain information with that Marketplace Retailer or supplier to permit the Marketplace Retailer or supplier, as applicable, to fulfill and ship your order, process returns, and provide customer service. 14. Third-Party Software & Licensing Notices The XS Medical LLC Sites may include certain third-party technologies and open source materials (collectively, “Third-Party Technology”). Your use of such Third-Party Technology is subject to these Terms of Use. 15. Promotions Any sweepstakes, contests, raffles, surveys, games, or similar promotions (collectively, “Promotions”) made available through the XS Medical LLC Sites may be governed by rules that are separate from these Terms of Use. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with these Terms of Use, the Promotion rules will govern. 16. Disclaimer of Warranties THE XS MEDICAL LLC SITES, AND ALL CONTENT, MATERIALS, PRODUCTS, SERVICES, FUNCTIONALITY, AND OTHER ITEMS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE XS MEDICAL LLC SITES, ARE PROVIDED BY XS MEDICAL LLC ON AN “AS IS” AND “AS AVAILABLE” BASIS. NO XS MEDICAL LLC ENTITY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE XS MEDICAL LLC SITES OR THE CONTENT, MATERIALS, PRODUCTS, SERVICES, FUNCTIONALITY, OR OTHER ITEMS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE XS MEDICAL LLC SITES. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE XS MEDICAL LLC ENTITIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, THE XS MEDICAL LLC ENTITIES DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, FOR ANY MERCHANDISE OFFERED ON THE XS MEDICAL LLC SITES. YOU ACKNOWLEDGE THAT, TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, YOUR USE OF THE XS MEDICAL LLC SITES IS AT YOUR SOLE RISK. THIS SECTION 16 DOES NOT LIMIT THE TERMS OF ANY PRODUCT WARRANTY OFFERED BY THE MANUFACTURER OF AN ITEM THAT IS SOLD BY XS MEDICAL LLC TO YOU THROUGH THE XS MEDICAL LLC SITES. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THESE TERMS OF USE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE XS MEDICAL LLC SITES AND AGREE THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE XS MEDICAL LLC SITES MAY NOT BE SECURE AND MAY BE INTERCEPTED OR OTHERWISE ACCESSED BY UNAUTHORIZED PARTIES. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO XS MEDICAL LLC ENTITY IS RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR PROPERTY OR DATA THAT RESULTS FROM ANY MATERIALS YOU ACCESS OR DOWNLOAD FROM THE XS MEDICAL LLC SITES. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU. 17. Limitation of Liability YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, XS MEDICAL LLC WILL NOT BE LIABLE TO YOU OR TO ANY OTHER PERSON UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE XS MEDICAL LLC SITES, EVEN IF AN AUTHORIZED REPRESENTATIVE OF A XS MEDICAL LLC ENTITY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, THIS DISCLAIMER APPLIES TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION FAILURE, NETWORK OR SYSTEM OUTAGE, THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OF USE OF ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS. SUBJECT TO THE FOREGOING, TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, NO XS MEDICAL LLC ENTITY WILL BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE FEES PAID BY YOU IN CONNECTION WITH YOUR USE OF THE XS MEDICAL LLC SITES DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, NO XS MEDICAL LLC ENTITY WILL BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY SELLER (INCLUDING ANY MARKETPLACE RETAILER), SHOPPER, OR OTHER USER OF THE XS MEDICAL LLC SITES. 18. Indemnification You agree to defend (at XS Medical LLC’s option), indemnify, and hold the XS Medical LLC Entities harmless from and against any and all liabilities, claims, damages, costs, and expenses, including attorneys’ fees and costs, arising from or related to your misuse of the XS Medical LLC Sites or any breach by you of these Terms of Use. XS Medical LLC reserves the right, at our expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in any case, you agree to cooperate with XS Medical LLC if and as requested by XS Medical LLC in the defense and settlement of such matter. 19. Disputes & Arbitration; Applicable Law PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. Using or accessing the XS Medical LLC Sites constitutes your acceptance of this Arbitration provision. Please read it carefully as it provides that you and XS Medical LLC will waive any right to file a lawsuit in court or participate in a class action for matters within the terms of the Arbitration provision. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND XS MEDICAL LLC, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, 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 XS MEDICAL LLC AND YOU ARE EACH WAIVING THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by Judicial Arbitration Mediation Services, Inc. (“JAMS”) pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”) and as modified by this agreement to arbitrate. The JAMS Rules, including instructions for bringing arbitration, are available on the JAMS website at http://www.jamsadr.com/rules-streamlined-arbitration. The Minimum Standards are available at http://www.jamsadr.com/consumer-arbitration. The arbitrator will conduct hearings, if any, by teleconference or videoconference, 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 JAMS or by the arbitrator. The arbitrator’s decision will follow the terms of these Terms of Use 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 these Terms of Use, 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 these Terms of Use 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. These Terms of Use will be governed by and construed under the laws of the United States (including federal arbitration law) and the State of California, without regard to conflicts of law principles. 20. Termination These Terms of Use are effective unless and until terminated by either you or XS Medical LLC. You may terminate these Terms of Use at any time, provided that you discontinue any further use of the XS Medical LLC Sites. We also may terminate these Terms of Use at any time and may do so immediately without notice, and deny you access to the XS Medical LLC Sites, if in our sole discretion you fail to comply with any term or provision of these Terms of Use. Upon any termination of these Terms of Use by either you or XS Medical LLC, you must promptly destroy all Materials and other Content downloaded or otherwise obtained from the XS Medical LLC Sites, as well as all copies of such Content, whether made under these Terms of Use or otherwise. The following sections will survive any termination of these Terms of Use: “Your Use of the XS Medical LLC Sites,” “Content and Ideas,” “Monitoring by XS Medical LLC,” “Materials Available on the XS Medical LLC Sites,” “Merchandise,” “Third Party Sites,” “Placing an Order with XS Medical LLC,” “Shipping and Delivery,” “Export Policy,” “Intellectual Property” (excluding the rights granted to you in that Section), “Privacy,” “Third-Party Software & Licensing Notices,” “Indemnification,” “Termination,” “Disclaimer of Warranties,” “Limitation of Liability,” “Disputes & Arbitration,” and “General”. 21. General These Terms of Use represent the complete agreement and understanding between you and XS Medical LLC and supersede all prior agreements and representations between the parties with respect to the subject matter of these Terms of Use. These Terms of Use do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between you and XS Medical LLC. Headings used in these Terms of Use are for reference purposes only and in no way define or limit the scope of the section. If any provision of these Terms of Use is held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable and the other terms of these Terms of Use will remain in full force and effect. The failure of XS Medical LLC to act with respect to a breach of these Terms of Use by you or others does not constitute a waiver and will not limit XS Medical LLC's rights with respect to such breach or any subsequent breaches. You may not assign, transfer, or sublicense any or all of your rights or obligations under these Terms of Use without our express prior written consent. We may assign, transfer, or sublicense any or all of our rights or obligations under these Terms of Use without restriction. Any use of the term “including” or variations thereof in these Terms of Use shall be construed as if followed by the phrase “without limitation.” Notices to you (including notices of changes to this these Terms of Use) may be made via posting to the XS Medical LLC Sites or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. 22. Filtering This is to 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 https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that we do not endorse any of the products or services listed on such site. 23. How to Contact Us If you have any questions or comments, please contact us at help@xsmedical.com, or by mail at the following address: XS Medical LLC; PO Box 7044, Huntington Beach, CA 92615-2477. 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, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.