OxyDial Terms of Use

Last Updated: May 15, 2023

1. Welcome

Welcome to OxyDial! OxyDial Inc (“we,” “us,” “ours,” or “OxyDial”) develops and produces cutting-edge medical devices to study blood and hemoglobin (“OxyDial Instrument”). We also provide software services through our cloud platform to support the research and testing of Oxygen equilibrium curves (“SaaS Services”).

Please review these Terms of Use carefully, as they govern your use of the OxyDial Instrument, the SaaS Services and the OxyDial website located at https://oxydial.com (“Site”). Together the SaaS Services and the Site are called the “Platform”.

These Terms of Use apply to you (“you,” “your,” “yours,” or “User”), which includes:

Each organization or entity that accesses or uses the Platform (“Enterprise Client”); and
Each individual that accesses or uses the Platform, whether on the individual’s own behalf or on behalf of an Enterprise Client.

Sometimes in these Terms of Use we call you and us a “party” or together, the “parties.” There are other defined terms throughout these Terms of Use. You can tell if a term is defined if it has quotation marks around it. Except for when we refer to you/your/yours, us/we/ours, or party/parties, defined terms are capitalized when used again in these Terms of Use.

BY USING THE PLATFORM OR OXYDIAL INSTRUMENT YOU AGREE TO ALL OF THE TERMS AND CONDITIONS IN THESE TERMS OF USE. IF YOU ARE USING THE PLATFORM OR OXYDIAL INSTRUMENT ON BEHALF OF AN ENTERPRISE CLIENT, YOU ALSO AGREE TO ALL OF THE TERMS AND CONDITIONS IN THESE TERMS OF USE ON BEHALF OF SUCH ENTERPRISE CLIENT AND YOU REPRESENT THAT YOU HAVE AUTHORITY TO DO SO. IF YOU (OR THE ENTERPRISE CLIENT, IF APPLICABLE) DO NOT AGREE TO THESE TERMS OF USE, DO NOT USE THE PLATFORM OR OXYDIAL INSTRUMENT.

OXYDIAL DOES NOT PROVIDE MEDICAL ADVICE. Do not rely on our Platform for medical advice.

THESE TERMS OF USE INCLUDE A MUTUAL BINDING ARBITRATION AGREEMENT IN SECTION 12 THAT REQUIRES RESOLUTION OF DISPUTES BY INDIVIDUAL ARBITRATION UNLESS YOU OPT-OUT AS PROVIDED IN SECTION 12.

2. The Platform and OxyDial Property

Our Ownership of the Platform and the OxyDial Property

We own all of the following, which we sometimes collectively call the “OxyDial Property”:

The Platform (which includes the SaaS Services and the Site);
The “OxyDial Technology,” which refers to the OxyDial Instrument and all related technology, inventions, and processes;
The “OxyDial Content,” which refers to the content and other information created, derived, or provided by OxyDial in connection with the Platform or the OxyDial Technology, including text, designs, graphics, other files, and their selection and arrangement on the Platform and education and training materials; and
The “OxyDial Data,” which refers to all data and data compilations aggregated, compiled, created, developed, derived, owned, or licensed by OxyDial.

Between you and us, we own all right, title, and interest to the OxyDial Property, all components and derivative works of the OxyDial Property, and the copyrights, patents, trade secrets, trademarks, and other intellectual property rights pertaining to any aspect of the OxyDial Property. We reserve all rights in the OxyDial Property not expressly granted to you in these Terms of Use. You acquire no ownership interest, derivative work, or component of the OxyDial Property through your use of it. You are not granted right, title, or interest to use any trademark, service mark, logo, or trade name of OxyDial under these Terms of Use.

No medical advice

Our Platform, the OxyDial Technology, and OxyDial Content are for informational purposes only. We do not provide medical advice. We are not a health care provider. We do not collect or process Protected Health Information (“PHI”) as that term is defined under the Health Insurance Portability and Accountability Act of 1996, as amended, and any and all rules and regulations promulgated from time to time thereunder (“HIPAA”). The OxyDial Technology is not approved by the FDA.

YOU AGREE THAT NONE OF THE OXYDIAL TECHNOLOGY, AND NOTHING ON OUR PLATFORM OR IN THE OXYDIAL CONTENT, SHOULD BE USED TO MAKE MEDICAL DECISIONS OR TAKEN AS OR SUBSTITUTED FOR MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. Never disregard medical advice or delay in seeking treatment because of something you have seen or read in connection with our Platform, the OxyDial Technology, or the OxyDial Content. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR HEALTHCARE PROVIDER OR 911 IMMEDIATELY. We do not recommend or endorse any specific tests, health providers, products, procedures, opinions, or other information that may be mentioned on our Platform or in the OxyDial Content for medical purposes. RELIANCE ON ANY INFORMATION PROVIDED IN CONNECTION WITH OUR PLATFORM, THE OXYDIAL TECHNOLOGY, OR THE OXYDIAL CONTENT IS SOLELY AT YOUR OWN RISK. YOU AGREE THAT YOU ASSUME ALL RESPONSIBILITY FOR YOUR USE OF THE PLATFORM, THE OXYDIAL TECHNOLOGY, AND OXYDIAL CONTENT AND FOR ALL DECISIONS TAKEN OR NOT TAKEN BASED ON ANY INFORMATION PROVIDED OR DISPLAYED IN THE PLATFORM, THE OXYDIAL TECHNOLOGY, OR OXYDIAL CONTENT. WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY DIAGNOSIS, DECISION, OR ASSESSMENT MADE BY YOU OR ANY INJURIES YOU OR ANY PERSON MAY INCUR AS A RESULT OF DECISIONS BASED ON INFORMATION PROVIDED OR DISPLAYED IN THE PLATFORM, THE OXYDIAL TECHNOLOGY, OR OXYDIAL CONTENT.

3. Your Use of the Platform

Your permitted use

Enterprise Client Users. If you are an Enterprise Client or have been granted access to the Platform on behalf of an Enterprise Client, then, subject to these Terms of Use, you may use the Platform solely for the internal business purposes of the Enterprise Client and consistent with OxyDial’s agreement with such Enterprise Client (“Client Agreement”). In the event of a conflict between these Terms of Use and any Client Agreement, the Client Agreement controls.
All Other Users. Subject to these Terms of Use, you may use the Platform solely for your internal business purposes. The Platform is not intended for personal use or use by consumers.

Minimum age

You must be 18 years of age or older to use the Platform. Our Platform is not intended for or directed to children. We don’t knowingly collect personal information directly from children under the age of 18.

Information you provide to us

With respect to any information or data you provide or make available to us in any manner, including via the Platform or OxyDial Technology (“User Data”), you have the sole responsibility and liability for the accuracy, quality, integrity, legality, reliability, and appropriateness of User Data.

Your compliance with law

You are solely responsible and liable for compliance with all applicable law related to your use of the Platform. You agree to provide reasonable cooperation to us regarding requests from law enforcement or other governmental authorities.

Prohibited Uses

You will not do any of the following in connection with the Platform or other OxyDial Property, collectively the “Prohibited Uses”:

Upload to, make available on, or transmit via the Platform Protected Health Information, as such term is defined under HIPAA
Decompile, disassemble, or reverse engineer the Platform or OxyDial Technology, or attempt to obtain or perceive the source code from which any component of the Platform or OxyDial Technology is compiled or interpreted
Duplicate or create any derivative product from the OxyDial Property or any component of the OxyDial Property
License, sublicense, lease, resell, or transfer any of the OxyDial Property to a third party or allow third parties to gain access to the OxyDial Property
Access the OxyDial Property if you are a direct competitor of us, access the OxyDial Property for a competitive purpose, or provide any OxyDial Property, directly or indirectly, to any competitor of ours (including any screenshots of the Platform or reports regarding the Platform or OxyDial Technology)
Remove any copyright, trademark, or other proprietary notions from the OxyDial Property
Transmit material containing viruses, malware, or other harmful or deleterious computer code, files, scripts, agents, or programs through the Platform or OxyDial Technology
Interfere with or disrupt the integrity or performance of the Platform or OxyDial Technology
Attempt to bypass, exploit, defeat, or disable limitations or restrictions placed on the Platform or OxyDial Technology
Conduct any denial of service (DoS) attack on the Platform or otherwise attempt to disrupt, disable, or overload the Platform or the OxyDial Technology
Attempt to gain access to the Platform or OxyDial Technology by automated means, such as bots
Attempt to gain unauthorized access to the Platform, the OxyDial Technology, or the computer systems or networks related to the Platform
Create a false identity or attempt to mislead others as to your identity or the identity of the sender or the origin of any data or communications
Use the Platform or OxyDial Technology to violate any law or rights of others
Interfere with another person’s use and enjoyment of the Platform or OxyDial Technology
Use or export the OxyDial Property in violation of US export laws and regulations

Suspension or termination of your access; removal of User Data

We may suspend or terminate your access to the Platform or your account, or remove any User Data, immediately if we, in good faith, believe any of the following: that you have materially breached any provision of these Terms of Use; that you are using the Platform in a manner that threatens the security, integrity, or reliability of the Platform; that there has been unauthorized access or fraud related to your account or the Platform; or that the provision or use of the Platform, the OxyDial Technology (or a portion thereof) will expose us, you, or any Enterprise Client to legal, regulatory, or compliance risk.

4. Accounts

Client and User accounts

An account is required to access certain features of the Platform, including the SaaS Services.

If you are an Enterprise Client, you may add your employees or contractors as Users to your account; provided that all Users you add to your account agree to and are bound by these Terms of Use. Without limiting any other statement in these Terms of Use, Enterprise Client agrees that Enterprise Client is responsible and liable for any breach of these Terms of Use caused by any User of the Platform on behalf of Enterprise Client.
If you are a User on behalf of Enterprise Client, then the Enterprise Client may grant you access to such Enterprise Client’s account.
If you create your own account, then your account is only available to you and you will not allow any other person to access or use your account; you are solely responsible for the security of your account and all User Data in your account.

Security of accounts and access credentials

You may create or obtain access credentials (for example, username and password) to the Enterprise Client’s account or your account, as applicable. You must have unique access credentials. You may not share access credentials with anyone. You are responsible for maintaining the confidentiality of your access credentials and any data you provide or can access in your account or an Enterprise Client’s account, as applicable. You agree to use prudent and reasonable efforts to prevent unauthorized access to or use of the Enterprise Client’s account and your account, as applicable. You will notify us immediately of any unauthorized access to or use of your access credentials or your account or the Enterprise Client’s account, as applicable. You will also notify the Enterprise Client immediately of any unauthorized access to or use of your access credentials to the Enterprise Client’s account. We have no liability to you for any unauthorized access to or use of your access credentials, your account, or the Enterprise Client’s account caused by your acts, omissions, or breach of these User Terms.

Backups

We store and will regularly back up User Data in the SaaS Services. We will not be responsible for any backup, recovery, or other steps to ensure User Data is recoverable in the event of a data loss caused by an act or omission by the User (such deletion of User Data by a User).

5. User Data and Feedback

Our licensed and permitted use of User Data; our ownership of Aggregated Data

You grant us a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide right and license to access, store, process, use, copy, modify, aggregate, anonymize, deidentify, make compilations of, make derivative works from, translate, display, disclose, transfer, remove, and export User Data as reasonably necessary: (a) to provide, maintain, update, or improve the Platform or the OxyDial Technology; (b) to prevent or address service, security, support, or technical issues; (c) to create Aggregated Data (defined below); (d) as otherwise permitted by any applicable Client Agreement; (e) in accordance with, or as required applicable law, legal process, or governmental request; (f) to enforce or defend our rights or carry out our obligations; or (g) as permitted in writing by you. All data and data compilations aggregated, compiled, created, or derived by us from User Data or the use of our Platform or the OxyDial Technology by you (collectively, “Aggregated Data”) shall be owned by us and shall constitute OxyDial Data. To the extent that we require further rights, you assign us all right, title, and interest you may have, if any, to the Aggregated Data.

Our rights to Feedback; limits on your use of Feedback; our ownership of improvements made based on Feedback

We encourage you to submit feedback to us, including any suggestion, enhancement request, recommendation, correction, or change regarding the OxyDial Property (“Feedback”). If you provide us with Feedback via the Platform or any other method, you grant us an exclusive, royalty-free, perpetual, irrevocable, transferable, and sublicensable worldwide right and license to access, store, process, use, copy, modify, aggregate, anonymize, deidentify, make compilations of, make derivative works from, translate, display, record, publicly perform, broadcast, transmit, publish, distribute, disclose, transfer, remove, sublicense, sell, and export Feedback you provide, in any form or medium, without restriction. You are prohibited from reposting, republishing, or redistributing Feedback. We have the right, but do not assume any responsibility to review, screen, or approve Feedback. We have no obligation to keep Feedback confidential, to pay any compensation for Feedback, or to respond to any Feedback. You are solely responsible for the accuracy and legality of any Feedback you make. We take no responsibility and assume no liability for any Feedback posted or transmitted by you or a third party. We own all improvements, modifications, and changes to the OxyDial Property based on your Feedback.

6. Confidentiality

OxyDial Confidential Information

“OxyDial Confidential Information” means all information we disclose to you that is designated by us as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Any feature or function of the Platform or the OxyDial Technology that has not been made public is considered OxyDial Confidential Information. However, OxyDial Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to us, (b) was known to you prior to our disclosure without breach of any obligation owed to us, (c) you received from a third party without breach of any obligation owed to us, or (d) was independently developed by you.

You agree to keep all OxyDial Confidential Information confidential and to only use OxyDial Confidential Information in connection with your permitted use of the Platform.

7. Personal Information

Privacy Policy

You agree that we may collect, process, use, and disclose personal information according to our Privacy Policy and these Terms of Use and any changes to the Privacy Policy or Terms of Use published by us. If you have been granted access to the SaaS Services on behalf of an Enterprise Client, you authorize us to share your personal information with such Enterprise Client. We do not control how Enterprise Clients use, process, or disclose your personal information.

You understand and agree that anonymized or deidentified data is not personal information and deidentified PHI is not PHI, and restrictions on our use of personal information or PHI contained in our Privacy Policy or under HIPAA do not apply to such anonymized or deidentified data even if such data was created or derived from personal information or PHI.

Children

Children under the age of 16 are prohibited from using the Platform and we do not collect any personal information directly from children.

Protected Health Information

You are prohibited from providing or making PHI available to us, including uploading to, making available on, or transmitted PHI via the Platform.

8. Your Consent to Communications; Opt-Out Rights

Your consent to electronic communications and signatures

We may need to provide you with certain communications, notices, agreements, or disclosures (“Communications”) in writing regarding the Platform or OxyDial Technology. You agree and consent to receive Communications electronically (including through email or electronically through the Platform) from OxyDial, our affiliates, and our third-party service providers, rather than in paper form, and to the use of electronic signatures in our relationship with you (“E-Communications Consent”). You also acknowledge and agree that you have the ability to receive Communications electronically. You should maintain copies of electronic Communications from us by printing a paper copy or saving an electronic copy.

Your consent to marketing communications

You agree and consent to receive promotional and marketing communications from us, our affiliates, our third-party service providers, and other third parties through direct mail, email or electronically through the Platform. We and third parties may collect additional marketing communications consents from you, which will be considered additional consents (and not replacements for this consent).

Your communications opt-out rights

You may opt-out of the following types of communications by sending a notice to opt-out@oxydial.com and specifying the type of opt-out request in the notice.

E-Communications Consent. You may withdraw your consent to receive and sign Communications electronically (your E-Communications Consent). If you choose to withdraw this consent, we may terminate your access to the Platform.
Marketing Emails or Direct Mail from Us. You may withdraw your consent to receive marketing emails or direct mail from us. In addition to sending a notice to the email address above, you may opt out of marketing emails by following the unsubscribe instructions in marketing emails.

In order to process your request, we may request information to verify your identity. We also reserve the right to deny your request if we cannot verify your identity or we are otherwise permitted to deny your request under applicable law. You may continue to receive communications from us while we process your request. You will continue to receive transaction and service-related communications even after your request is processed.

9. Representations, Warranties, and Disclaimer

Your representations and warranties

By entering into these Terms of Use, you make the following representations and warranties to us:

Valid agreement. You represent and warrant that you have validly accepted or entered into these Terms of Use on your own behalf and have the legal power and authority to do so. If you are using the Platform or OxyDial Technology on behalf of an Enterprise Client, you additionally represent and warrant that you have validly accepted or entered into these Terms of Use on behalf of the Enterprise Client and you have the legal power and authority to do so.
User Data. You represent and warrant that you, at all times, have all rights necessary to grant all rights and licenses to the User Data granted to us in these Terms of Use. You further represent and warrant that, at all times,: (a) you have created or obtained the User Data lawfully and the User Data does not and will not violate any applicable law or any third party’s rights, including privacy rights or intellectual property rights; (b) you have fully complied with any third party licenses to the User Data; (c) you have complied with all applicable law, provided all applicable notices, and received the proper authority or consent to allow us to collect and use User Data (including personal information therein) for the purposes provided in these Terms of Use; (d) we may exercise our rights in User Data granted in these Terms of Use without liability or cost to any third party; and (e) the User Data complies with the terms of these Terms of Use.

No Sanctions Lists. You represent and warrant that you are not on any government prohibited, denied, or unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, “Sanctions Lists”). If you become placed on any Sanctions List, you will notify us immediately and discontinue your use of the Platform.

10. Indemnification

Your indemnification of OxyDial

You agree to defend, indemnify, and hold us, our affiliates, and our third-party providers, licensors, and suppliers, along with our and their respective directors, officers, employees, and agents, harmless from any claims, damages, losses, or costs (including reasonable attorneys’ fees and expenses) arising out of your use of the Platform or any other OxyDial Property, breach of these Terms of Use, or violation of any applicable law or the rights of any third party.

11. Disclaimer and Limitations of Liability

DISCLAIMER OF WARRANTIES

YOU ARE SOLELY RESPONSIBLE FOR AND ASSUME ALL RISKS RELATED TO YOUR USE OF THE PLATFORM AND OTHER OXYDIAL PROPERTY. WE MAKE NO REPRESENTATIONS OR WARRANTIES TO YOU OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PLATFORM AND OTHER OXYDIAL PROPERTY, WHICH ARE ALL PROVIDED TO YOU “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE.” TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, OR STATUTORY. We expressly disclaim any implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. We expressly disclaim any warranties of system integration, non-interference, absence of any defects (whether latent or patent), and security of data. We do not warrant or make any representations concerning the accuracy, completeness, or usability of information or materials, including OxyDial Content, provided in connection with our Platform, found on our Platform, or linked to our Platform. We expressly disclaim any warranty related to third-party websites or other third-party content that may be accessed through our Platform. We make no warranty or representation on the basis of trade usage, course of dealing, or course of performance. We do not warrant or represent that the Platform, any other OxyDial Property, or any other materials, data, software, products, or services provided under these Terms of Use or in connection with the Platform will meet your requirements, comply with applicable law, generate enforceable obligations, be uninterrupted, error-free, or free of bugs, viruses, or malware. We do not represent or warrant that any errors or defects will be corrected. You acknowledge that our obligations under these Terms of Use are for your benefit only. The Platform may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. We are not responsible for any delays, delivery failures, or other damages resulting from such problems.

APPLICABILITY OF LIMITATIONS OF LIABILITY

ALL OF THE LIMITATIONS OF LIABILITY IN THIS SECTION 11, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, APPLY (a) regardless of the theory of liability, whether in contract, tort or otherwise; (b) regardless of the cause of the damages, including negligence by us or our third-party providers, licensors or suppliers; (c) even if we have been advised of the possibility of such damages; (d) without regard to whether other provisions of these Terms of Use have been breached or any remedies have failed their essential purpose; and (e) to any claims you may bring against any third party to the extent that we would be required to indemnify that third party for such claim.

WE HAVE NO LIABILITY FOR CERTAIN TYPES OF DAMAGES

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO LIMIT CLAIMS FOR DAMAGES (OR OTHER MONETARY RELIEF) AGAINST US TO DIRECT AND ACTUAL DAMAGES REGARDLESS OF THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE. THIS MEANS THAT YOU WILL NOT SEEK ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, TREBLE, OR PUNITIVE DAMAGES FROM US. WE HAVE NO LIABILITY FOR DAMAGES RELATED TO: unauthorized access to, loss, or theft of your account, information, or data; lost profits; costs of delay; failure of delivery; business interruption; costs of procurement of substitute goods, services, or technology; or, personal injury or death. We have no liabilities to third parties arising from any source.

WE ARE NOT LIABLE FOR DAMAGES OUT OF OUR CONTROL

You agree that we are not liable for delays, problems, or damages caused by you or a third party, by any act of nature, by any act beyond our reasonable control (for example, war, terrorist acts, labor disputes, government actions, pandemics), or by any criminal activity by someone unrelated to us.

YOU AGREE TO LIMIT THE AMOUNT OF DAMAGES PAYABLE BY US

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF OXYDIAL, OUR AFFILIATES, AND OUR THIRD-PARTY PROVIDERS, LICENSORS, OR SUPPLIERS ARISING OR RELATING TO THESE TERMS OF USE IS LIMITED TO $100.

YOU AND WE AGREE TO LIMIT THE DEADLINE TO BRING CLAIMS

To the fullest extent permitted by applicable law, you and we each agree that all claims related to these Terms of Use must be brought within 2 years of the date the claim arises (even if applicable law provides for a longer statute of limitations).

YOU AND WE WOULD NOT HAVE ENTERED INTO THESE TERMS OF USE WITHOUT THESE LIMITATIONS OF LIABILITY

The limitations of liability in this Section 11 constitute an important part of these Terms of Use and are among the reasons you and we are willing to enter into these Terms of Use. Without these limitations of liability, the provisions of these Terms of Use would be substantially different.

12. Disputes

Summary of dispute resolution procedures

By entering into these Terms of Use, you are agreeing to resolve any dispute with us informally, and, if it cannot be resolved informally, through binding arbitration or small claims court (unless you opt out) and to waive your rights to participate in any class action suit (unless you opt out) or to a jury trial.

Good faith negotiation of disputes

For any and all disputes or claims you have, you must first give us an opportunity to resolve your claim by sending a written description of your claim to notices@oxydial.com. You and we each agree to negotiate your claim in good faith. You agree that you may not commence any arbitration or court proceeding unless you and we are unable to resolve the claim within 60 days after we receive your claim description and you have made a good faith effort to resolve your claim directly with us during that time.

Binding arbitration and small claims court

YOU AND WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY RELATED TO OR CONCERNING THE TERMS OF USE, OUR PRIVACY POLICY, THE PLATFORM, OR ANY OTHER OXYDIAL PROPERTY WILL BE RESOLVED BY BINDING ARBITRATION OR IN SMALL CLAIMS COURT. This includes any claims against other parties relating to the Platform or other OxyDial Property (such as our third-party providers, licensors, and suppliers) whenever you also assert claims against us in the same proceeding. You and we each also agree that these Terms of Use affect interstate commerce so that the Federal Arbitration Act and federal arbitration law, not state law, apply and govern the enforceability of this dispute resolution provision (despite the general choice of law provision set forth below). THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THESE TERMS OF USE AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES).

Your choice to opt-out of arbitration

Notwithstanding the above, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE YOU CREATED YOUR ACCOUNT (OR FIRST ACCESSED THE PLATFORM, IF YOU HAVE NOT CREATED AN ACCOUNT) (the “Opt Out Deadline”). You may opt out of these arbitration procedures by sending an email to opt-out@oxydial.com and clearly stating that you wish to opt out of the arbitration procedures in the Terms of Use. Any opt-out received after the Opt Out Deadline will not be valid and you will be required to pursue your claim in arbitration or small claims court.

Arbitration and small claims court procedures

If we are unable to resolve your claim within 60 days despite those good faith efforts, then either you or we may start arbitration or small claims court proceedings. To begin arbitration, you must send a written letter requesting arbitration and describing your claim to our registered agent c/o OxyDial Inc, and to the American Arbitration Association (“AAA”). You may download or copy a form of notice and a form to initiate arbitration at www.adr.org or by calling 1-800-778-7879. The arbitration of all disputes will be administered by the AAA under its Commercial Arbitration Rules in effect at the time the arbitration is commenced, except to the extent any of those rules conflicts with these Terms of Use, in which case these Terms of Use will govern. The AAA rules are available at www.adr.org. If the claims asserted in any request or demand for arbitration could have been brought in small claims court, then either you or we may elect to have the claims heard in small claims court, rather than in arbitration, at any time before the arbitrator is appointed, by notifying the other party of that election in writing. The arbitration of all disputes will be conducted by a single arbitrator, who will be selected using the following procedure: (a) the AAA will send the parties a list of five candidates; (b) if the parties cannot agree on an arbitrator from that list, each party will return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) the AAA will appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. Payment of all filing, administration, and arbitrator fees will be governed by the AAA rules. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. In addition, for claims under $75,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs. If we are the prevailing party, we may seek reimbursement of reasonable attorneys’ fees and costs in arbitration unless prohibited under applicable law.

Class action waiver

YOU AND WE EACH AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS, REPRESENTATIVE, MASS, OR CONSOLIDATED ACTION. If we believe that any claim you have filed in arbitration or in court is inconsistent with this limitation, then you agree that we may seek an order from a court determining whether your claim is within the scope of this class action waiver. If a court or arbitrator determines in an action between you and us that any part of this class action waiver is unenforceable with respect to any claim, this class action waiver will not apply to that claim, but will still apply to any and all other claims that you or we may assert in that or any other action.

Your choice to opt-out of the class action waiver

Notwithstanding the above, YOU MAY OPT-OUT OF THE CLASS ACTION WAIVER WITHIN 30 DAYS FROM THE DATE YOU CREATED YOUR ACCOUNT (OR FIRST ACCESSED THE PLATFORM, IF YOU HAVE NOT CREATED AN ACCOUNT) (the “Opt Out Deadline”). You may opt out of the class action waiver by sending an email to opt-out@oxydial.com and clearly stating that you wish to opt out of the class action waiver in the Terms of Use. Any opt-out received after the Opt Out Deadline will not be valid and you will be prohibited from pursuing your claim via a class action. You cannot be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with these opt out requirements.

Injunctive relief

You and we acknowledge and agree that a breach by you of your responsibilities under Sections 3,4, 6 or 9, could cause us irreparable harm for which monetary damages would not be an adequate remedy. You and we agree that, in the event of such breach or threatened breach, we will be entitled to equitable relief, including, without limitation, a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. The binding arbitration provisions shall not apply to requests for injunctive relief under this paragraph, which may be brought in arbitration or court proceedings. These remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

Jury trial waiver

If a claim proceeds in court rather than through arbitration, YOU AND WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.

13. General

Choice of law

These Terms of Use are governed by the laws of the state of Pennsylvania without regard to the conflicts of laws rules. Foreign laws do not apply. Arbitration or court proceedings must be brought in Pennsylvania.

No Application of Consumer Law

The Platform and OxyDial Technology may only be used for the internal business purposes of the Enterprise Client or User and are not intended for personal use or use by consumers. To the fullest extent permitted by law, you acknowledge and agree that consumer laws do not apply to your use of the Platform or OxyDial Technology.

Notices

You may deliver notices to us by email to notices@oxydial.com or by postal mail to OxyDial Inc., 325 Chestnut Street, Suite 800, Philadelphia, PA, 19106, Attention: Olek Shestakov, CEO. If you are commencing an arbitration or legal proceeding against us, you must send notice of the arbitration or legal proceeding to our registered agent c/o OxyDial Inc. We may deliver notices to you via email, mail, or electronic means using the contact information in your account or by posting the notice on the Platform. Electronic notices are considered delivered when sent or posted. Postal notices are considered delivered 3 days after mailing. Notices delivered by a nationally recognized courier (for example, UPS and FedEx) are considered delivered when received.

Platform materials

The OxyDial Content and other information and materials on our Platform may contain technical, typographical, photographic, or other errors, inaccuracies, or omissions. We do not warrant or guarantee that the OxyDial Content or any information or materials on our Platform are accurate, complete, or current. We may make changes to the OxyDial Content and information and materials on our Platform at any time without notice, but we make no commitment to do so.

Changes

You acknowledge that the Platform, the OxyDial Technology, the OxyDial Content, or the OxyDial Data, including any feature, may be updated, removed, or otherwise be subject to change in our sole discretion and without notice to you. Other than obligations under any applicable Client Agreement with respect to changes to the Platform, you agree that we will not be liable to you or any third party for any change, suspension, or discontinuance of the Platform, the OxyDial Technology, the OxyDial Content, the OxyDial Data, or any feature of them.

Third-Party links and services

The Platform may include integrations, links, or connections to third-party websites, applications, or services. This inclusion does not imply review or endorsement by us; you proceed at your own risk to a third-party website, application, or service. We do not warrant, and are not responsible for, the services, products, statements, or claims made by or about a third party, or the actions or omissions of any third-party. You must review and comply with any third-party terms of service or other provisions.

Third-Party beneficiaries

Our third-party providers, licensors, and suppliers and our affiliates are considered to be third-party beneficiaries of these Terms of Use solely to the extent necessary for them to enforce any protections afforded them by these Terms of Use, except as otherwise provided in these Terms of Use. There are no other third-party beneficiaries to these Terms of Use. All rights and benefits of these Terms of Use from us are intended solely for you as the User.

Assignment

You are prohibited from assigning these Terms of Use to a third party without the prior written consent of us. We may assign these Terms of Use and/or our rights and obligations under these Terms of Use, in whole or in part, without notice to you or your consent: (a) in connection with a merger, acquisition, corporate reorganization or sale of some or all of our assets, or (b) to an affiliate of ours. Subject to the foregoing restrictions on assignment, these User Terms will bind and inure to the benefit of your and our respective successors and permitted assigns.

Waiver

We cannot waive any provision of these Terms of Use except in a writing signed by us. Our failure to insist on or enforce strict performance of any provision of these Terms of Use or any of our rights is not a waiver of any provision or right.

Severability

If any part of these Terms of Use is held invalid or unenforceable, that part may be severed from the Terms of Use to the minimum extent necessary to cure such invalidity or unenforceability. The remainder of the Terms of Use will remain valid and enforceable.

Amendment

We have the sole discretion to amend or change these Terms of Use. If this occurs, we will provide you with notice via any means we consider reasonable, including, without limitation, email, posting on our Platform, or updates to the Platform. After we provide notice, your continued use of the Platform constitutes your acceptance of the changes and the Terms of Use as amended. We may, but are not required to, also provide you with alternative means of accepting any changes to or amended version of the Terms of Use. We encourage you to visit this page regularly for any changes.