On October 20, 2015, Fulton County Superior Court Judge Robert McBurney dismissed all claims brought against Xytex Cryo International on March 31, 2015. The case was initiated by a Canadian couple which alleged misrepresentation of donor qualifications and credentials. Xytex remains committed to providing clients with excellent service and upholding the highest practices and standards in the industry.
Over the last 40 years, we have developed into an industry leader because of our steadfast commitment to our clients. We are proud to have helped tens of thousands of families throughout the world to achieve their dreams of having healthy children and building families.
You can imagine our concern when a lawsuit was filed last week that accused us of misleading a client. We want to assure you that this is simply not true. We have conducted a careful review of our records and the claims by the couple in question do not reflect the representations provided to Xytex.
We followed thorough procedures to review the health of the donor. As you may know, this vetting process eliminates 99% of the potential donors who apply to Xytex. In this case, the donor underwent a standard medical exam and provided extensive personal and health information. He reported a good health history and stated in his application that he had no physical or medical impairments. This information was passed on to the couple, who were clearly informed the representations were reported by the donor and were not verified by Xytex.
In addition, the donor provided signed photos of himself that we passed on to the couple without alteration. He also provided us with copies of his undergraduate and graduate university degrees.
We stand by the process we followed, and intend to vigorously defend ourselves against the allegations in this lawsuit. In the meantime, we remain committed to providing clients with excellent service and upholding the highest practices and standards in the business.
Kevin M. O’Brien
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Site Usage and Information Agreement
Effective 3rd April 2017
IMPORTANT! THESE TERMS AND CONDITIONS AREA BINDING LEGAL AGREEMENT (this “Agreement”). PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS SITE.
This Agreement governs your use of www.xytex.com and any other website or page offered by Xytex and its subsidiaries and affiliates that links to this Agreement (collectively, including all associated content, communications, tools, features, functionality and services, the “Site”). This Agreement is by and between Xytex and its subsidiaries and affiliates (referred to herein as “Xytex”, “we”, “us”, or “our”) and you, on behalf of yourself, individually, or the organization on whose behalf organization you have registered (in either case, “you”). If you access the Site in your capacity as an employee, owner, or otherwise as an agent of an entity, you represent and warrant that you have the authority to bind such entity to the terms of this Agreement. You are deemed to have accepted this Agreement by accepting this Agreement and/or by using, viewing, transmitting, caching, storing and/or otherwise utilizing the Site, the services or functions offered in or by the Site and/or the contents of the Site in any way. For clarity, upon such access and use, you shall have agreed to each and all of the terms and conditions set forth below, and waive any right to claim ambiguity or error in this Agreement. If you do not agree to any portion of this Agreement, please discontinue use of the Site immediately. We reserve the right, at our sole and absolute discretion, to change, modify, add, or remove portions of this Agreement at any time without prior notice and, unless otherwise indicated, such changes will become effective immediately when an updated version of this Agreement is posted online; therefore, please check this Agreement periodically for changes. Your continued use of the Site following the posting of changes to this Agreement will mean you accept those changes. Please print and retain a copy of this Agreement, as it may be changed from time to time, for your records.
Certain products and services that we offer are governed by both this Agreement and additional terms specific to that product or service (“Additional Terms”). The terms of this Agreement and all applicable Additional Terms are collectively, the “Service Terms”. In the event of any conflict between this Agreement and the Additional Terms, such Additional Terms shall control with respect to your use of the product or service to which they apply only.
The Site is available only to individuals and entities that can form legally binding contracts under applicable law. Without limiting the foregoing, the Site and the services offered by the Site are not available to minors under 18 or under the age of majority in their jurisdiction of residence, if older than 18. If you cannot form a legally binding contract due to age or otherwise, leave the Site and do not use the Site.
In consideration of your use of the Site, you represent, warrant and covenant to us that:
III. RESTRICTIONS ON USE
You acknowledge and agree that the features, tools, functionality, applications, materials, data and other information, content (including their selection and arrangement), services and software (including all text, logos, photographs, graphics, images, video, audio, illustrations, software, html, source and object code, algorithms, business logic, modules, programs, links and other materials), product names, logos, designs, service marks, trade marks, trade dress, titles, and certain words or phrases, in each case displayed on, transmitted through, or accessed or used on, within, or in connection with the Site (all of the foregoing, collectively, “Service Content”), are intellectual property protected by copyright, trademark or other proprietary rights of Xytex or its licensors, suppliers or other designees, which rights may or may not be registered in certain jurisdictions. You acknowledge and agree that Xytex and its licensors, suppliers or other designees reserves and retains, for itself and such third parties, as applicable, all intellectual property and other proprietary rights of any and all kinds in connection with the Site and Service Content, and you will not acquire any interest therein by using the Site or Service Content. You also agree to comply with any additional copyright notices, information, or restrictions contained in any Service Content available on or accessed through the Service.
No Service Content or material from any other Internet site owned, operated, licensed, or controlled by us may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without our prior written permission in each instance. For purposes of this Agreement, the use of any such material on any other Web, Internet, intranet, extranet or other site or computer environment is prohibited. You may not frame or utilize framing techniques to enclose any of our trademarks, logos, or other proprietary information (including images, text, page layout, or form) without our prior express written consent. You may not use any meta tags or any other hidden text utilizing our name, trademarks or other proprietary information without our prior express written consent.
Unless indicated otherwise, all names, logos, trademarks, service marks, trade dress and trade names on the Site are proprietary to Xytex. We consider our trademarks to be valuable assets, and take infringement of them seriously. Following is a list of the trademarks used on this site and owned by Xytex:
Xytex, Patriach, Super Sperm, PhotoFile, BabyFile, AudioFile, VideoFile, XTS, xyGene, xyConnects, and Ovations.
In the event you are permitted to download software from the Site, the software, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the “Software”) we hereby grant you a limited, revocable license, without the right to sublicense, to use the Software to the limited extent necessary to use the Site and our services. We do not transfer title to the Software to you. You own the medium on which the Software is recorded, but we (or third party licensors) retain full and complete title to the Software and all intellectual property rights therein. You may not redistribute, sell, de-compile, reverse engineer, disassemble, or otherwise reduce the Software to a human-readable form.
You may not: (a) engage in harvesting of email addresses or other personal information, unsolicited emailing, telephone calls or mailings, spoofing, flooding, overloading, spidering, “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other non-public information through the Site or attempt to gain unauthorized access to any portion of the Site or any other computer systems, networks or platforms linked to the Site. You agree that you will not use the Site in any manner that could damage, disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Site.
We are pleased to hear from our users and welcome your comments regarding the Site and the products and services offered in connection with the Site. Unfortunately, however, our long-standing company policy does not allow us to accept or consider creative ideas, suggestions, or materials other than those that we have specifically requested. We employ staff and consultants who may be working on the same or similar ideas. We hope you will understand that it is the intent of this policy to avoid the possibility of future misunderstandings when projects developed by our professional staff and/or consultants might seem to others to be similar to their own creative work. Please do not send us any unsolicited original creative materials of any kind. While we do value your feedback on your experience using the Site and the services and products offered in connection with the Site, we request that you be specific in your comments with respect to the same, and not submit any creative ideas, suggestions, or materials (unless specifically requested by us).
If, at our request, you send certain specific submissions or, despite our request, you send us creative suggestions, ideas, notes, drawings, concepts, or other information (collectively, the “Submissions”), the Submissions shall be deemed, and shall remain, our property. None of the Submissions shall be subject to any obligation of confidentiality on our part and we shall not be liable for any use or disclosure of any Submissions. Without limitation of the foregoing, we shall exclusively own all now known or hereafter existing rights to the Submissions of every kind and nature throughout the world and shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation or notice to, or approval by, the provider of the Submissions. Xytex does not waive any rights it may have to ideas previously known to it or developed by its employees and representatives, or obtained from sources other than you, which ideas are similar or related to Submissions.
“Forum” means a chat area, message board, or interactive function or feature offered as part of the Site. If you participate in a Forum within the Site, if applicable, you must not: (i) defame, abuse, harass or threaten others; (ii) make any bigoted, hateful or racially offensive statements; (iii) advocate illegal activity or discuss illegal activities with the intent to commit them; (iv) post or distribute any material that infringes, misappropriates and/or violates any right of a third party or any law; (v) post or distribute any vulgar, obscene, discourteous or indecent language or images; (vi) advertise or sell to, or solicit others; (vii) use the Forum for commercial purposes of any kind other than to facilitate a transaction on the Site; (viii) post or distribute any software or other materials which contain a virus or other harmful component; (ix) post material or make statements that do not generally pertain to the designated topic or theme of any Forum; or (x) submit any content that negatively reflects on the Site or the Xytex brand and its goodwill, or is otherwise objectionable as determined in Xytex’s sole discretion. Nor may you submit any content to a Forum that advertises or links to other sites for your commercial purposes, include viruses, corrupted data or other harmful, disruptive or destructive files, or may expose the Site or its users to any harm. You shall remain solely responsible for the content of your messages and shall indemnify and hold the Indemnified Parties (described in Part VIII below) harmless for the content of such messages. We reserve the right to remove or edit content from any Forum at any time and for any reason. While we may review content posted to or through a Forum, we are under no obligation to do so.
By uploading materials or posting any content to any Forum or otherwise submitting any materials to us, you (1) represent and warrant that such material or content is original to you, no other party has any rights in it, and it complies with this Agreement, and (2) automatically grant us a perpetual, royalty-free, irrevocable, non-exclusive, fully transferable, assignable, sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, publicly perform and display, create derivative works from and distribute such materials or incorporate such materials or content, including all data, images, creative works, sounds, text, and other things embodied in it, into any form, medium, or technology now known or later developed throughout the world. In addition, you waive any rights to compensation, attribution or any other “moral rights” in such materials and content.
When participating in a Forum, proceed with caution and never assume that people are who they say they are, know what they say they know, or are affiliated with whom they say they are affiliated with in any chat room, message board, or other user generated content area. In the event that you connect with us outside of the Site through any third party social media or sharing platform such as Facebook®, Twitter Inc., your use of such platform is subject to that platform’s separate terms and conditions.
ELECTRONIC TRANSMISSIONS, INCLUDING THE INTERNET, ARE PUBLIC MEDIA, AND ANY USE OF SUCH MEDIA IS PUBLIC AND NOT PRIVATE. INFORMATION RELATED TO OR ARISING FROM SUCH USE IS PUBLIC, OR THE PROPERTY OF THOSE COLLECTING INFORMATION, AND NOT PERSONAL OR PRIVATE INFORMATION. YOU AGREE THAT YOU USE THE SITE AT YOUR OWN RISK. ANY AND ALL CONTENT, SERVICES AND MATERIALS ACCESSIBLE ON, OR THROUGH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY. WE DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS REGARDING THE ACCURACY, RELIABILITY, USEFULNESS OR COMPLETENESS OF OUR SERVICES, CONTENT OR MATERIALS ACCESSIBLE ON, OR THROUGH THE SITE OR ANY SITE LINKED TO IT. TO THE MAXIMUM EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, DESIGN, ACCURACY, CAPABILITY, SUFFICIENCY, SUITABILITY, CAPACITY, COMPLETENESS, AVAILABILITY, COMPATIBILITY OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WE DO NOT WARRANT THAT THE SITE OR THE SERVICES, CONTENT, MATERIALS OR FUNCTIONS ACCESSIBLE ON, OR THROUGH THE SITE WILL BE CONTINUOUSLY AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE, SERVICES, CONTENT, MATERIALS OR THE SERVERS THAT MAKE THE SITE OR SUCH SERVICES, CONTENT AND MATERIALS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR ARE ACCURATE OR COMPLETE. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, CONTENT, MATERIALS, FUNCTIONS OR PRODUCTS AVAILABLE THROUGH THE SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION AS A RESULT OF USING THE SITE AND OUR SERVICES. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
In the event we are held liable for any damages related to such matters, your sole and exclusive remedy will be limited to reimbursement for actual out-of-pocket expenses for services or products paid by you to us. You hereby waive any and all rights to bring any claim or action related to such matters in any forum beyond one (1) year after the first occurrence of the kind of act, event, condition or omission upon which the claim or action is based.
The Indemnified Parties (described in Part VIII below) are not responsible for telephone, electric, electronic, network, Internet, computer, hardware or software program malfunctions, failures, delays or difficulties, or late, lost, stolen, illegible, incomplete, garbled, misdirected, mutilated or postage due mail, e-mail, form postings, connections, messages or entries, or the security of any and all such matters.
Further, such Indemnified Parties are not responsible for incorrect or inaccurate entry information, whether caused by Internet users or by any of the equipment or programming associated with or utilized in the Site or by any technical or human error which may occur in the processing of any information related to the Site.
We may prohibit you from participating in or utilizing the Site if in our sole and absolute discretion you show a disregard for the terms of this Agreement or act with the intent to annoy, abuse, threaten, or harass any other user, or in any other disruptive manner. We also reserve the right to refuse service, terminate accounts, remove or edit content or cancel orders in our sole and absolute discretion.
We reserve the right to suspend access or discontinue the Site, in whole or in part, at any time, for any reason, including infection by computer virus, bugs, tampering, unauthorized intervention, fraud, technical failures, or any other causes beyond the reasonable control of Xytex, without prior notice.
You also agree that the Indemnified Parties (described in Part VIII below) are not responsible or liable in any way for injury, loss or damage to your computer or interception or use of credit card or payment information, related to or resulting from use of the Site or any sites, services or materials linked or related thereto or there from and also are not responsible or liable in any way for any injury, loss, claim or damage relating to or resulting from any part of the Site operating or not operating on computers or networks used by you or communicating with such computers or networks.
Although we intend that product descriptions contained in the Site be current and accurate, we make no warranty or representation that descriptions of products in the Site are accurate, complete, current, or reliable in any or all respects.
WE MAKE NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITE OR ANY WEB SITE LINKED TO THE SITE. WE WILL NOT BE LIABLE FOR THE PRIVACY OF THE INFORMATION, EMAIL ADDRESSES, REGISTRATION AND IDENTIFICATION INFORMATION, DISK SPACE, COMMUNICATIONS, CONFIDENTIAL OR TRADE-SECRET INFORMATION, OR ANY OTHER CONTENT TRANSMITTED OVER NETWORKS ACCESSED BY THE SITE, OR OTHERWISE CONNECTED WITH YOUR USE OF THE SITE.
NO ORAL ADVICE OR WRITTEN CORRESPONDENCE OR INFORMATION PROVIDED BY US OR ANY OF THE INDEMNIFIED PARTIES (DESCRIBED IN PART VIII BELOW) WILL CREATE A WARRANTY OF ANY KIND AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE. WE RESERVE THE RIGHT, IN OUR SOLE AND ABSOLUTE DISCRETION AND WITHOUT NOTICE, TO CORRECT ANY ERRORS OR OMISSIONS IN ANY PORTION OF THE SITE, OR TO DENY ACCESS TO THE SITE TO ANYONE AT ANY TIME. NEITHER WE NOR ANY OF THE INDEMNIFIED PARTIES, SHALL HAVE ANY LIABILITY ARISING FROM YOUR RELIANCE UPON THE INFORMATION PROVIDED ON THE SITE.
Search and Directory are free services which may be offered in connection with the Site. Because online content changes constantly, no search engine technology can possibly have all accessible data at any given time. Thus, we explicitly disclaim any responsibility for the content or availability of information contained in any search index or directory offered in connection with the Site.
The Site may contain technical inaccuracies or typographical errors or omissions. Xytex is not responsible for any typographical, photographic, or technical errors on our Site. Xytex reserves the right to make changes, corrections and/or improvements to the Site, and to the products and programs described in such information, at any time without notice.
You are entirely responsible for maintaining the confidentiality of your password and account and for all activities that occur under your account. You hereby indemnify, defend and hold us (including our subsidiaries and affiliates), our suppliers and licensors, and each of such person’s or entities’ officers, directors, agents, contractors, subcontractors, guests, residents, visitors, licensees, invitees, permitees and employees (collectively, the “Indemnified Parties”) harmless from and against any and all allegations, demands, claims, liabilities, damages, fines, penalties or costs of whatsoever nature (including reasonable attorneys’ and experts fees and court costs) and whether by reason of death of or injury to any person or loss of or damage to any property or otherwise (“Claims”) arising out of or in any way connected with this Agreement, the services or products provided to you by us through the Site or any related act or failure to act by you and whether or not occasioned or contributed to by the negligence of Xytex or any agent or employee of the Indemnified Parties or any of them (except as and to the extent prohibited by applicable law) or Claims arising from your account, including, without limitation, any Claims related to infringement by you of the intellectual property rights of any person, including without limitation, copyright, patent, trade secret, trade mark, artist rights, droit moral, privacy, publicity or rights under other intellectual property laws. In the event that any Claim is made or any action or proceeding is brought against the Indemnified Parties, or any of them, arising out of or connected with this Agreement, any such Indemnified Party may, by reasonable notice to you, require you, at your expense, to resist such Claim or take over the defense of any such action or proceeding and employ counsel for such purpose, such counsel to be subject to the prior written approval of such Indemnified Party, which approval shall be deemed to have been given hereby in the case of counsel acting for your insurance underwriters engaged in such resistance or defense. You shall cooperate with us in the defense of any Claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL WE BE LIABLE FOR ANY LOST PROFITS, COST OF COVER, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, CONSEQUENTIAL OR PUNITIVE DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE SERVICES OR FUNCTIONS OF THE SITE OR ARISING OUT OF YOUR ACCESS TO, OR INABILITY TO ACCESS, THE SITE OR YOUR RELIANCE UPON, THE SITE OR THE SERVICES, CONTENT OR MATERIALS IN, OR FUNCTIONS OF, THE SITE, PROVISION OF, OR FAILURE TO PROVIDE SERVICES, OR INFORMATION, OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE). IN ADDITION, WE HAVE NO DUTY TO UPDATE THE SITE OR THE CONTENTS THEREOF. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SITE. IF YOU ARE DISSATISFIED WITH THE SITE OR ANY OF THE PRODUCTS, OR SERVICES IN CONNECTION THEREWITH OR ASSOCIATED THEREWITH, AS THE CASE MAY BE, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE USE OF THE SITE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH THE TERMS HEREOF.
BY UTILIZING THE SITE, ALL USERS ACKNOWLEDGE AND AGREE THAT THE INDEMNIFIED PARTIES ARE RELEASED, DISCHARGED AND HELD HARMLESS FROM AND ARE NOT RESPONSIBLE OR LIABLE FOR ANY LIABILITY WITH RESPECT TO ALL ASPECTS OF THE SITE (INCLUDING WITHOUT LIMITATION, ANY ILLNESS, LOSSES, LITIGATION, PERSONAL INJURY, DEATH, PROPERTY DAMAGE, AND CLAIMS BASED ON PUBLICITY RIGHTS, DEFAMATION, OR INVASION OF PRIVACY, REASONABLE ATTORNEYS’ FEES AND COURT COSTS) THAT MAY OCCUR FROM USE OF THE SITE OR THE ACCEPTANCE, POSSESSION, USE OR MISUSE OF INFORMATION, MATERIALS, SERVICES OR PRODUCTS RELATED THERETO OR ACQUIRED THEREFROM. WE RESERVE THE RIGHT AT ANY TIME AND WITHOUT LIABILITY TO RESTRICT OR REFUSE ACCESS TO THE SITE AND ITS SERVICES, CONTENT, MATERIALS AND FUNCTIONS TO ANYBODY. WE FURTHER RESERVE THE RIGHT TO SEEK ANY FORM OF RELIEF, INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES, RELATED TO FRAUDULENT OR ILLEGAL ACTIVITY CONNECTED WITH THE USE OF THE SITE.
We make no representation that the services or products offered in the Site are appropriate or available for use in any particular location. Those who choose to access the Site and our products and services do soon their own initiative and are responsible for compliance with local laws in their jurisdiction. If use of the Site and/or viewing or use of any material or content on the Site orif use of our products or services violates any applicable law in your jurisdiction, you are not authorized to view or use the Site, products and/or services and must discontinue use immediately. Your viewing and/or use of the Site constitutes your representation that you are unconditionally and without limitation permitted to view and use the Site and the Indemnified Parties may rely upon such representation. The Site is operated from the United States and it is possible that some Software from the Site may be subject to United States export controls. No Software from the Site may be downloaded or otherwise exported or re-exported to any person or to any location in violation of the export laws of the United States or any other jurisdiction. By downloading or using the Software, you represent and warrant that you are not located in a restricted location, or a restricted person or under the control of a restricted person.
This Agreement, as amended, remains effective during all periods of time during which you access the Site, our products or services. Your access to the Site may be terminated immediately without notice from us if in our sole and absolute discretion you fail to comply with any term or provision of this Agreement. Upon termination, you must cease use of the Site and destroy all materials obtained from such site and all copies thereof, whether made under the terms of this Agreement or otherwise. All rights and obligations which by their nature are intended to survive the termination of your use of the Site and/or termination of this Agreement in order to be fully operative, shall survive termination including, without limitation, the following provisions: Agreement; Additional Terms; Privacy (Part I), User Eligibility; Your Account (Part II); Restrictions on Use(Part III); Submissions (Part IV); Forums and Public Communications, second to last paragraph (Part V); Disclaimers (Part VII); Indemnification (Part VIII); Limitation of Liability (Part IX); Release (Part X); Termination (this Part XII); General Provisions (Part XIII); and Notice and Procedure for Making Claims of Copyright Infringement (Part XV).
XIII. GENERAL PROVISIONS
You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Site and your solicitation of offers to purchase and/or sell products and/or services. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, U.S.A., without giving effect to any principles of conflicts of law. You agree that (1) any action at law or in equity arising out of or relating to the terms of this Agreement, our products or services shall be resolved individually, without resort to any form of class action, and filed only in the state or federal courts located in Richmond County, Georgia, U.S.A., and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action, and (2) any and all claims, judgments and awards shall be limited to your actual-out-of-pocket costs incurred, but in no event attorneys’ fees, and under no circumstances will you be permitted to obtain awards for, and you hereby waive, all rights to claim any indirect, punitive, incidental, and consequential damages and any other damages, other than for actual out-of-pocket expenses, and any and all rights to have damages multiplied or otherwise increased. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between us relating to the subject matter of this Agreement and shall not be modified except as otherwise set forth in this Agreement. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition of this Agreement, whether or not similar, nor shall any waiver constitute a continuing waiver of any such term, provision or condition of this Agreement. No waiver shall be binding unless executed in writing by the party making the waiver. You agree that you will execute and deliver to us, in recordable form if necessary, such further documents, instruments or agreements, and shall take such further action, that may be necessary or appropriate to effectuate the purposes of this Agreement.
XIV. DIGITAL SIGNATURE PROVISIONS
You further agree that your clicking to accept terms and conditions on the Site constitutes a valid, legal and binding electronic signature and that you will have formed, executed, entered into, accepted the terms of, and otherwise acknowledged and agreed to the applicable terms.
In accordance with the U.S. Digital Millennium Copyright Act, notifications of claimed copyright infringement should be sent to our Designated Agent. Notification must be submitted to the following Designated Agent:
To be effective, the notification must be a written communication that you can mail or email to us as indicated above that includes the following:
Effective 3rd April 2017
We collect personally identifiable information that you provide to us when you register to use the Site or any portion of the Site, like xyConnects, register to receive our newsletter, request information or services from us, or otherwise communicate or interact with us online. We also may receive information about you from third-party sources and add it to the information you have provided to us.
We use your personally identifiable information for a variety of business purposes, including to provide information or services you request, to communicate with you about them, to do all things necessary to administer the Site and our services, and manage, protect and improve them.
We are not responsible for the information you volunteer about yourself or choose to make public in discussions in our forums or other interactions through the Site that are accessible to other users.
We collect a variety of information from donors, including personal information, such as name and contact information, that can be used to identify or contact a donor. While we do not intentionally release personally identifying information of donors without their consent, it is possible that certain information like hair color, eye color, race, ethnic origin, height, weight, baby picture, medical history and other information you submit to us for inclusion in a donor profile (“Donor Information”) could result in persons familiar with you recognizing you.
We use information gathered through these tools to improve the way our Site works, for example by employing third-party analytics tools which aggregate anonymized user information to help us better design our Site, and to enhance the functionality of our Site, for example by remembering preferences or other choices that you make, such as user names and the like. By allowing us to understand how you use our Site over time, these tools can help us provide you with a better, more relevant online experience.
Unless your browser settings are configured to make your online activities and publicly available information about your online activities (such as traffic data described above under #3) invisible to usage analytics tools, we do not presently have the capability to omit you from our analytics to the extent your browser only sends us a “do not track” message and does not otherwise screen you from tracking without action on our part. While we, or vendors on our behalf, may track the websites you visited before and after our website as part of the traffic data described above for our internal business purposes, we do not authorize other third parties (e.g., advertisers) to do so, but it is nonetheless possible that third parties may do so for their own purposes with respect to which we may have no knowledge or control.
We share Donor Information with users as described on the Site. We may use third parties to help operate our Site, deliver and improve our services through the Site, and develop our offerings, and we may share information we have about you with such third parties for such purposes. These third parties are not authorized by us to use any of your personally identifiable information except as needed for such purposes.
We reserve the right to transfer any information we have about you in connection with a sale, merger, consolidation, change in control, transfer of assets, reorganization or liquidation of our business.
We reserve the right to disclose any information as needed if that information is requested by law enforcement agencies or if we are required to do so by applicable law. Users should also be aware that courts of equity, such as U.S. Bankruptcy Courts, might have the authority under certain circumstances to permit personally identifiable information to be shared or transferred to third parties without permission.
Xytex is based in the United States of America. Any personally identifiable information you provide may be stored and maintained in our databases in the United States or transferred to our databases outside the United States. By providing us with your information, you consent to this transfer.
If you receive a newsletter or similar promotional email from us, you will be given the option to “unsubscribe” from receiving further emails from us. Your election not to receive promotional and marketing materials will not preclude us from corresponding with you, by email or otherwise, regarding your existing or past business relationships with us (e.g., any purchase of our products), or to respond to requests for information you pose to us, and will not preclude us from accessing and viewing your personally identifiable information in maintaining and improving our Service.
This Site is not intended for, or designed to attract, minors under the age of 18 or the applicable age of majority in their jurisdiction of residence (if higher than 18). In particular, no children under the age of 13 should provide any personally identifiable information to us, and we do not knowingly collect such information from such persons. If we learn that we have collected the personally identifiable information of such a person we will take steps to delete the information as soon as possible. Children under the age of majority in any non-U.S. jurisdiction should not provide any personally identifiable information without their parent’s consent.
Pursuant to Section 1798.83 of the California Civil Code, residents of California have the right to request from a business, with whom the California resident has an established business relationship, what types of personal information the business shares with third parties for direct marketing purposes by such third party and the identities of the third parties with whom the business has shared such information in the immediate preceding calendar year. To access this information, please contact us by email at firstname.lastname@example.org or mail at 1100 Emmett Street, Augusta, Georgia 30904, Attn: CA Privacy Request.