NNOXX INC.
TERMS OF SERVICE
Last Updated May 17, 2023
IMPORTANT: PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY BEFORE EITHER USING THE SERVICES OR THE SITE OR PURCHASING A NNOXX DEVICE (ALL AS DEFINED BELOW). THESE TERMS OF SERVICE SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SITE AND THE SERVICES AND FOR YOUR PURCHASE AND USE OF THE NNOXX DEVICE. BY ACCESSING AND USING THE SERVICES AND SITE IN ANY MANNER AND USING YOUR NNOXX DEVICE, YOU ARE AGREEING TO BE BOUND BY THE FOLLOWING TERMS.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
ALL REFERENCES TO “YOU” AND “YOUR” SHALL REFER TO THE PERSON ACCESSING AND/OR USING THE SITE AND THE SERVICES AND PURCHSING A NNOXX DEVICE OR, IF YOU PURCHASE A NNOXX DEVICE ON BEHALF OF A THIRD PARTY, “YOU” AND “YOUR” SHALL INCLUDE SUCH ENTITY, AND YOU REPRESENT AND WARRANT TO NNOXX THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF SUCH ENTITY AND HAVE THE AUTHORITY TO BIND THE ENTITY TO THESE TERMS OF SERVICE.
NNOXX INC. (“NNOXX”, “we”, “us” OR “OUR”) PROVIDES PRODUCTS AND SERVICES TO MEASURE, ANALYZE AND RECOMMEND TRAINING REGIMENTS BASED ON NITRIC OXIDE, OXYGEN, AND OTHER BIOMARKER LEVELS FOR THE BETTERMENT OF HEALTH AND WELL-BEING VIA ONE OR MORE NON-INVASIVE, WEARABLE DEVICES (EACH, A “NNOXX DEVICE”) USED IN CONJUCTION WITH THE NNOXX SOFTWARE (DEFINED BELOW) AND RELATED SOFTWARE AND APPS INSTALLED ON A COMPUTER, NETWORK OR MOBILE DEVICE (COLLECTIVELY, THE “SERVICES”). THE NNOXX DEVICE, THE NNOXX SOFTWARE AND SUCH RELATED SOFTWARE AND SOFTWARE APPS AND/OR MOBILE APPLICATIONS, AND THE SITE (AS DEFINED BELOW), TOGETHER WITH THE SERVICES AND ANY RESULTS OR CONTENT PROVIDED VIA THE SERVICES, WHETHER PROVIDED BY NNOXX OR THIRD PARTIES, ARE COLLECTIVELY REFERRED TO IN THESE TERMS AS THE “NNOXX PRODUCTS AND SERVICES”.
THE NNOXX PRODUCT AND SERVICES ARE NOT MEDICAL ADVICE OR A medical device. THEY ARE NOT designed or intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease, AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR ADVICE OR CONSULTATION FROM YOUR DOCTOR OR OTHER MEDICAL PROFESSIONAL. ALL CONTENT AVAILABLE THROUGH THE SERVICES IS FOR GENERAL INFORMATIONAL PURPOSES ONLY. USE OF THE NNOXX PRODUCT AND SERVICES, OR COMMUNICATION WITH US VIA THE INTERNET, E-MAIL OR OTHER MEANS, DOES NOT CREATE ANY DOCTOR-PATIENT RELATIONSHIP. IF YOU HAVE ANY HEALTH-RELATED QUESTIONS, PLEASE CALL OR SEE YOUR DOCTOR OR OTHER HEALTHCARE PROVIDER. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT OR RECOMMENDATION PRESENTED BY OR THROUGH THE NNOXX PRODUCTS AND SERVICES, AND YOU SHOULD NOT USE THE NNOXX PRODUCTS AND SERVICES FOR DIAGNOSING OR TREATING A HEALTH PROBLEM.
THE SERVICES MAY INCLUDE TRAINING OR OTHER RECOMMENDATIONS TO HELP MEET HEALTH, FITNESS, AND WELLNESS GOALS. YOU ACKNOWLEDGE AND AGREE THAT NNOXX IS NOT A HEALTHCARE PROVIDER, PERSONAL TRAINER OR FITNESS INSTRUCTOR AND THAT THE SERVICES (INCLUDING ANY RECOMMENDATIONS AND ANY INFORMATION AVAILABLE THROUGH THE SERVICES THAT MAY APPEAR TO BE PERSONALIZED) MAY NOT BE APPROPRIATE FOR YOU. NNOXX IS NOT RESPONSIBLE FOR ANY RESULTS THAT MAY OR MAY NOT BE OBTAINED FROM THE USE OF THE SERVICE. YOU AGREE THAT EXERCISE ACTIVITIES CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF BODILY INJURY, DEATH OR PROPERTY DAMAGE, AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES. YOU SHOULD ALWAYS CONSULT A QUALIFIED AND LICENSED MEDICAL PROFESSIONAL PRIOR TO BEGINNING OR MODIFYING ANY DIET, EXERCISE, CONSULTATIONS, OR TRAINING PROGRAM, INCLUDING ANY RECOMMENDED BY OR THROUGH USE OF THE NNOXX PRODUCTS AND SERVICES. Your use of the NNOXX Products and Services, whether provided directly to you or by or on behalf of or managed by a coach, team, organizing body or other entity with which you are affiliated (each, a “Managing Entity”), is subject to these Terms and the Privacy Policy (defined below).
NNOXX may modify and/or supplement these Terms, the Privacy Policy, Content (as defined below) and/or the NNOXX Products and Services at any time and such modification and/or supplement will be effective upon our posting of such modifications and/or supplementations. By continuing to access or use the NNOXX Products and Services after such modification and/or supplement, you are agreeing to be bound by the modified.
1. General.
1.1 The NNOXX Products and Services may be provided to you by NNOXX and/or in connection with our partners, service providers, sponsors, and other affiliates. Your use of the NNOXX Products and Services, whether provided directly to you or by or on behalf of or managed by a coach, and/or supplemented Terms, Privacy Policy, Content and/or NNOXX Products and Services, as applicable. Whether you purchased a Subscription, received a Subscription from a Managing Entity or third party or only accessed NNOXX’s website (including any other media form, media channel, or mobile website related, linked, or otherwise connected thereto) (collectively, the “Site”), these Terms will apply to your use of the NNOXX Products and Services in conjunction with your Subscription. For purposes of these Terms, “Content” refers to all NNOXX images, audio, video, text, photographs, graphics, data and other information made available to You through the Site or the Services.
1.2 In order to use the NNOXX Products and Services, you must create an account (“Account”). You agree to provide true, accurate and complete information and keep your Account information current and updated. You shall not select or use as a username (a) a name of another person with the intent to impersonate that person or (b) a name subject to any rights of a person other than yourself without appropriate authorization. You are solely responsible for any and all activities that occur under your Account or password, and for keeping your Account password confidential and secure. You may never use another person’s account or registration information for the NNOXX Products and Services without permission. You agree to notify us immediately of any change in your eligibility to use the Services, breach of security or unauthorized use of your Account or password. You should never publish, distribute or post login information for your Account. You have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates. NNOXX will not be liable for any loss or damage arising from your failure to comply with this Section.
1.3 If you are using the NNNOX Products and Services by or through a Managing Entity, you hereby grant such Managing Entity and its employees, representatives and agents full access to and use of your Account and your User Content, as defined and more fully described below. If you are a Managing Entity, you agree to (a) only allow authorized personnel trained by NNOXX to use the NNOXX Products and Services on individuals within your organization, (b) access the Accounts of such individuals, and use their User Content and other information available to you in such Accounts or otherwise generated from their use of the NNOXX Products and Services, solely in connection with the purpose of your organization and in accordance with all applicable laws, rules, regulations, contracts and other duties applicable to such use, and (c) grant such access and use solely to those of your employees, representatives and agents who need such access and use in connection with their duties and responsibilities to your organization.
1.4 You agree to use reasonable care when using the NNOXX Products and Services, and will only use them in a manner that is in accordance with the written instructions and training provided by NNOXX. You shall not attempt to circumvent any security mechanisms, reverse engineer, or reproduce any NNOXX Products or Services.
1.5 NNOXX and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will NNOXX be liable for the removal of or disabling of access to any such Services. NNOXX may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
1.6 We reserve the right, but do not have the obligation, to: (a) monitor the Site for violations of these Terms; (b) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms, including without limitation, reporting such user to law enforcement authorities; (c) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your User Content or any portion thereof; (d) in our sole discretion and without limitation, notice, or liability, to remove from the Site or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Site in a manner designed to protect our rights and property and to facilitate the proper functioning of the Site.
1.7 We reserve the right to change, modify, or remove any content or functionality of the Site or Services at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of the Site or Services without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site or Services.
1.8 We cannot guarantee the Site or Services will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site or Services, resulting in interruptions, delays, or errors. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site or Services during any downtime or discontinuance of the Site or Services. Nothing in these Terms will be construed to obligate us to maintain and support the Site or Services or to supply any corrections, updates, or releases in connection therewith.
2. Software License; Intellectual Property.
2.1 The software (including boot ROM code, embedded software and third party software), documentation, content and any data that is included or embedded in the NNOXX Device, and the software, documentation, content and any data that is included or embedded in any NNOXX mobile application (collectively, “Original NNOXX Software”), as may be updated or replaced by feature enhancements, software updates or system restore software provided by NNOXX (“NNOXX Software Updates”), whether in read-only memory, on any other media or in any other form (the Original NNOXX Software and NNOXX Software Updates are collectively referred to as the “NNOXX Software”), is licensed, not sold, to you by NNOXX for use only under these Terms. NNOXX and its licensors retain ownership of the NNOXX Software itself and reserve all rights not expressly granted to you.
2.2 NNOXX, at its discretion, may make available future NNOXX Software Updates for your NNOXX Device. The NNOXX Software Updates, if any, may not necessarily include all existing software features or new features that NNOXX releases for newer or other models of NNOXX Device. These Terms will govern any NNOXX Software Updates provided by NNOXX that replace and/or supplement the Original NNOXX Software product, unless such NNOXX Software Update is accompanied by a separate license in which case the terms of that license will govern.
2.3 Subject to these Terms, you are granted a limited non-exclusive license to use the NNOXX Software on a single NNOXX Device. Except as otherwise provided in a separate agreement between you and NNOXX, these Terms do not allow the NNOXX Software to exist on more than one NNOXX Device at a time, and you may not distribute or make the NNOXX Software available over a network where it could be used by multiple devices at the same time. These Terms do not grant you any rights to use NNOXX proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third-party devices and accessories, or third-party software applications, for use with NNOXX Device.
2.4 Subject to these Terms, you are granted a limited non-exclusive license to download NNOXX Software Updates that may be made available by NNOXX for your model of the NNOXX Device to update or restore the software on any such NNOXX Device that you own or control. These Terms do not allow you to update or restore any NNOXX Device that you do not control or own, and you may not distribute or make the NNOXX Software Updates available over a network where they could be used by multiple devices or multiple computers at the same time.
2.5 You may not, and you agree not to or enable others to, copy (except as expressly permitted by these Terms), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the NNOXX Software or any services provided by the NNOXX Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of open-source components that may be included with the NNOXX Software).
2.6 You agree that the Services contain proprietary content, information and material that is owned by NNOXX and/or our licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for permitted use of the Services or in any manner that is inconsistent with these Terms or that infringes any intellectual property rights of a third party or NNOXX. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity.
2.7 The Site is our proprietary property, and all source code, databases, functionality, website designs and Content on the Site (collectively, the “Site Content”) and all trademarks, service marks and logos of NNOXX contained therein (“Marks”) are owned and controlled by us or licensed to us and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws. The Site Content and the Marks are provided on the Site “AS IS” for your information and personal use only. Except as expressly provided in these Terms, no part of the Site and no Site Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written consent. Provided you are eligible to use the Site, you are granted a limited license to access and use the Site.
2.8 Provided that you are eligible to use the Site, you are granted a limited license to access and use the Site and to download or print a copy of any portion of the Site Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Site, the Site Content and the Marks.
3. Pricing; Delivery; Returns.
3.1 Your price for the NNOXX Device will include applicable sales tax and shipping charges. We reserve the right to alter, modify, or change prices at any time; provided, however, such price changes will not impact the any NNOXX Devices already purchased. Once purchased, you will not be entitled to any sort of refund in the event of any sales, promotional pricing, discounts, or price decreases.
3.2 If you did not receive your NNOXX Device upon purchase, the estimated date of delivery is not guaranteed in any manner and is NNOXX’s estimate for delivery and not a guarantee of delivery by such date or at all, and you agree that NNOXX is not liable for any late deliveries or cancelled orders (other than refunding any purchase price paid by you prior to delivery in the event of a cancelled order).
3.3 If you are not satisfied with your NNOXX Device, within 30 days of receiving your NNOXX Device, you may, so long as your NNOXX Device is new, unused, and in its original condition, with all original packaging, accessories, and documentation included, return your NNOXX Device for a refund to the original payment method, pursuant to our Return Policy. The Subscription is also refundable within such 30-day period, only if such Subscription is purchased in connection with the purchase of a NNOXX Device and such NNOXX Device is also returned within such 30-day period. Otherwise, the Subscription is non-refundable. At our discretion we may decline your return or charge you a fee of up to 20% of the original purchase price for any items that we determine, in our discretion, are damaged or require service.
3.4 In the event your NNOXX Device is damaged or defective upon delivery, NNOXX will replace the NNOXX Device at no cost to you, provided, however, that you notify NNOXX within 14 days of receiving your NNOXX Device.
4. Subscription; Subscription Fees.
4.1 In order to use the Services, you must subscribe (a “Subscription”) and pay all applicable subscription fees (“Subscription Fees”) as and when due. You agree to pay the Subscription Fees as described in these Terms and during the purchase and payment process. Any payment terms presented to you in the process of obtaining your Subscription are deemed part of these Terms and are incorporated herein by reference.
4.2 If applicable, we may collect payments from you directly or we may use a third-party payment processor ( “Payment Processor”) to bill you through a payment account linked to your Account (your “Billing Account”). The processing of payments by a Payment Processor will be subject to the terms, conditions and privacy policies of such Payment Processor in addition to these Terms. We are not responsible for any errors by a Payment Processor. By choosing to purchase a Subscription, you agree to pay us, either directly or through a Payment Processor, all Subscription Fees and other charges at the prices then in effect and in accordance with the applicable payment terms and you authorize us, through a Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using your selected Payment Method. We reserve the right to correct any errors or mistakes that we or a Payment Processor make even if we or a Payment Processor have already requested or received payment.
4.3 The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through a Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
4.4 The Subscription payment terms may consist of an initial period followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Subscription Fees have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY, ANNUALLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT.
4.5 You must provide current, complete and accurate information for your Billing Account. You must promptly update all information to keep your Billing Account current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and you must promptly notify us or our Payment Processor if your Payment Method is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your username or password. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY SUBSCRIPTION FEES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR SUBSCRIPTION AS SET FORTH ABOVE.
4.6 The Subscription will be automatically extended for (i) successive monthly renewal periods in the event you have purchased a monthly Subscription or (ii) successive annual periods in the event you have purchased an annual Subscription at the then-current, non-promotional rate. In the case of annual Subscription, we will notify you by email at least thirty (30) days prior to such automatic extension taking effect. If you terminate your Subscription, you may continue to use your Subscription until the end of your then-current term and your Subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the Subscription Fee paid for the then-current subscription period. If you do not want to continue to be charged on a recurring basis, you must cancel or terminate your Subscription before the end of the then-current term. Your Subscription cannot be terminated before the end of the period for which you have already paid, and except as expressly provided in these terms, NNOXX will not refund any amounts that you have already paid.
4.7 Your non-termination or continued use of your Subscription reaffirms that we are authorized to charge your Payment Method for that Subscription. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance or as otherwise described when you initially selected to purchase the Subscription.
5. Compliance with Laws.
5.1 You agree to use the NNOXX Products and Services in compliance with all applicable laws, including but not limited to local laws of the country or region in which you reside or in which you download or use the NNOXX Products and Services and all applicable privacy and data collection laws. You further agree not to use the NNOXX Products and Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that NNOXX is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using the NNOXX Products and Services.
5.2 You may not use or otherwise export or re-export any NNOXX Device or any related software (including any NNOXX Software) except as authorized by United States law and the laws of the jurisdiction(s) in which the NNOXX Software was obtained. In particular, but without limitation, neither the NNOXX Device nor any related software (including the NNOXX Software) may be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the NNOXX Products and Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the NNOXX Products and Services for any purposes prohibited by United States law.
5.3 The NNOXX Software and related software, software apps and documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, such Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
6. Transfer. You may not rent, lease, lend, sell, redistribute, or sublicense the NNOXX Software or any related software or software apps. You may, however, make a one-time permanent transfer of all of your license rights in the foregoing to another party in connection with the transfer of ownership of your NNOXX Device, provided that: (a) the transfer must include your NNOXX Device and all of the NNOXX Software, including all its component parts, original media, printed materials and these Terms; (b) you do not retain any copies of the NNOXX Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the NNOXX Software reads and agrees to accept these Terms.
7. User Content; Consent to Use of Data.
7.1 The Services include functionality that generates data, content and other information from your use of the NNOXX Products and Services, and may include functionality to permit the submission of other content, whether manually at the direction of users of the Services or automatically in accordance with your Account settings (collectively, “User Content”), and the hosting, sharing, and/or publishing of such User Content. You represent and warrant that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. User Content includes, without limitation, any user profile information you submit and make publicly available, any information collected by the NNOXX Device, including, without limitation, statistics and measurements, wellness information and fitness recommendations generated through the use of the Services.
7.2 You shall be solely responsible for User Content you submit or allow to be collected and the consequences of our posting or publishing such User Content. In connection with any User Content you submit, you affirm, represent and warrant that: (a) you own or have the necessary licenses, rights, consents, and permissions to use and authorize us to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Services and these Terms; and (b) you have the express specific, informed and unambiguous consent, release, or permission of each and every identifiable individual person in the User Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content in the manner contemplated by the Services and these Terms. By submitting the User Content to us, you hereby grant us a perpetual, worldwide, non-exclusive, royalty-free, sublicensable and transferable license to edit, modify, truncate, aggregate, use, reproduce, distribute, prepare derivative works of, modify, display, perform, publish and otherwise commercially exploit all or any portion of the User Content in connection with our provision of the Services and our (and our successors’) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels and sharing the User Content with social media platforms (i.e., posting User Content to Twitter or Facebook if enabled in your Account’s sharing settings) with our business partners and licensees for informational and analytical purposes. Although we perform regular routine backups of data, you are solely responsible for all User Content that you transmit or that relates to any activity you have undertaken using the Site or Services. You agree that we shall have no liability to you for any loss or corruption of any User Content, and you hereby waive any right of action against us arising from any such loss or corruption of any User Content.
7.3 If your use of the Services is on behalf of or managed by a Managing Entity, your Account and User Content may also be shared with that organization as more fully described in these Terms. You consent to that sharing and acknowledge and agree that we are not responsible for any use or disclosure of your information by that Managing Entity. Unless otherwise agreed, you also grant each authorized user of the NNOXX Products and Services within your Managing Entity a non-exclusive license to use, reproduce, distribute, prepare derivative works of, display, publish and perform such User Content as permitted through the functionality of the Services and under these Terms. We may maintain copies of any User Content for purposes of backup, security, or maintenance, or as required by law.
7.4 In connection with User Content, you further agree that you will not: (a) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant us all of the license rights granted herein; (b) publish falsehoods or misrepresentations that could damage us or any third party; (c) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (d) post advertisements or solicitations of business; or (e) impersonate another person. We do not endorse any User Content or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with any User Content. We do not permit copyright infringing activities and infringement of intellectual property rights in connection with the Services, and we will remove all User Content if properly notified that such User Content infringes on another’s intellectual property rights. We may remove any User Content without prior notice. We may also terminate your access to the Services if you are determined to be a repeat infringer. A repeat infringer is anyone who has been notified of infringing activity more than once and/or has had any User Content removed from the Services more than twice. We also reserve the right to decide whether User Content is appropriate and complies with these Terms for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, User Content that is of excessive length, unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate. We may remove such User Content and/or terminate your access for uploading such material in violation of these Terms at any time, without prior notice and at our sole discretion. We reserve the right to remove any User Content from the Services at any time, for any reason (including, but not limited to if someone alleges you contributed User Content in violation of these Terms), in our sole discretion, and without notice.
7.5 If you opt in to diagnostic and usage collection on your Paired iOS Device, you agree that NNOXX and its subsidiaries and agents may collect, maintain, process and use diagnostic, technical, usage and related information (“Diagnostic and Usage Data”), including but not limited to unique system or hardware identifiers, information about your NNOXX Device, Paired iOS Device, computer, system and application software, and peripherals, that is gathered periodically to provide and improve NNOXX Products and Services, facilitate the provision of software updates, product support and other services to you (if any) related to the NNOXX Products and Services, and to verify compliance with these Terms. NNOXX may use this information, as long as it is collected in a form that does not personally identify you, for the purposes described above. To enable NNOXX’s partners, third party developers and content providers to improve their products and services, NNOXX may also provide any such party with a subset of Diagnostic and Usage Data that is relevant to that party’s products or services, as long as the Diagnostic and Usage Data is in a form that does not personally identify you.
7.6 By using and/or accessing the Site and using the Services, you represent and warrant that you (a) have the right, authority, and legal capacity to do so, (b) agree to comply with these Terms, (c) are not a minor in the jurisdiction in which you reside, (d) will not access the Site through automated or non-human means, whether through a bot, script or otherwise, (e) will not use the Site for any illegal or unauthorized purpose, and (f) will not use the Site in any manner that could violate any applicable law or regulation.
7.7 We care about data privacy and security. Please review our Privacy Policy: http://www.nnoxx.com/privacy-policy. By using the Site and Services, you agree to be bound by our Privacy Policy, which is incorporated into these Terms. Please be advised the Site and Service are hosted in the United States. If you access the Site or Services from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Site and Services, you are transferring your data to the United States, and you agree to have your data transferred to and processed in the United States.
7.8 We may provide you areas on the Site to leave reviews or ratings. When posting a review, you must comply with the following criteria: (a) you should have firsthand experience with the person/entity being reviewed; (b) your reviews should not contain offensive profanity, or abusive, racist, offensive, or hate language; (c) your reviews should not contain discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation, or disability; (d) your reviews should not contain references to illegal activity; (e) you should not be affiliated with competitors if posting negative reviews; (f) you should not make any conclusions as to the legality of conduct; (g) you may not post any false or misleading statements; and (h) you may not organize a campaign encouraging others to post reviews, whether positive or negative. We may accept, reject, or remove reviews in our sole discretion. We have absolutely no obligation to screen reviews or to delete reviews, even if anyone considers reviews objectionable or inaccurate. Reviews are not endorsed by us, and do not necessarily represent our opinions or the views of any of our affiliates or partners. We do not assume liability for any review or for any claims, liabilities, or losses resulting from any review. By posting a review, you hereby grant to us a perpetual, non-exclusive, worldwide, royalty-free, fully paid, assignable, and sublicensable right and license to reproduce, modify, translate, transmit by any means, display, perform, and/or distribute all content relating to reviews.
8. Termination. Unless otherwise prohibited by law, and without prejudice to NNOXX’s other rights or remedies, NNOXX shall have the right to immediately terminate (i) your Subscription if you breach any of the terms of these Terms and (ii) any of the Services, in our sole discretion at any time; provided that if you are not in breach of these Terms, we will provide you with a pro rata refund of any Subscription Fee paid by you in advance reflecting the period where you did not benefit from the terminated Services as a result of such termination. These Terms is effective until terminated. All sections of these Terms that, by their nature, should survive termination will survive termination, including, without limitation, Sections 7, 9, 10 ,12, and 13.
9. Limited Warranty; Disclaimer of Warranties; Indemnity.
9.1 Your NNOXX Device is warranted to be free from defects in materials or workmanship for a period of one year from the date of purchase. Within such one-year period, NNOXX will, at its sole option, repair or replace any components that fail during normal use. This limited warranty does not apply to (a) the battery, (b) any external damage caused to the NNOXX Device such as scratches and dents, (c) damage resulting from misuse of the NNOXX Device, or (d) damages resulting from services performed on the NNOXX Device by someone not authorized by NNOXX to perform such services.
9.2 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE NNOXX PRODUCTS AND SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. YOU EXPRESSLY ASSUME ALL RISK ASSOCIATED WITH ANY LOSS, LIABILITY, OR DAMAGES RESULTING FROM YOUR USE OF THE NNOXX PRODUCTS AND SERVICES.
9.3 UNLESS OTHERWISE EXPRESSLY PROVIDED IN THE LIMITED WARRANTY SET FORTH IN SECTION 9.1, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE NNOXX PRODUCT AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND NNOXX AND NNOXX'S LICENSORS (COLLECTIVELY REFERRED TO AS "NNOXX" FOR THE PURPOSES OF SECTIONS 9 AND 10) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE NNOXX PRODUCTS AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
9.4 NNOXX DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE NNOXX PRODUCT AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE NNOXX PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OR PROVISION OF THE NNOXX PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY NNOXX PRODUCT OR SERVICE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN ANY NNOXX PRODUCT OR SERVICE WILL BE CORRECTED, OR THAT NNOXX PRODUCTS AND SERVICES WILL BE COMPATIBLE OR WORK WITH ANY THIRD-PARTY SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES. INSTALLATION OF ANY SOFTWARE INCLUDED IN THE NNONX PRODUCTS AND SERVICES MAY AFFECT THE AVAILABILITY AND USABILITY OF THIRD-PARTY SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES, AS WELL AS NNOXX PRODUCTS AND SERVICES.
9.5 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NNOXX, ANY MANAGING ENTITY OR ANY OF THEIR REPRESEENTATIVES SHALL CREATE A WARRANTY. SHOULD ANY NNOXX PRODUCT OR SERVICE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
9.6 You agree to defend, indemnify, and hold us and our subsidiaries, affiliates, officers, agents, suppliers, employees, partners and licensors (each, a “NNOXX Party”) harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your User Content, (b) your breach of these Terms, (c) your uploading of, access to, connection to, or use or misuse of the Content or the Services, or (d) your violation of law. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit or proceeding. We reserve the right to assume the exclusive defense and control of any matter which is subject to this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
10. Limitation of Liability. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL NNOXX OR ANY NNOXX PARTY BE LIABLE FOR PERSONAL INJURY, PROPERTY DAMAGE OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA (INCLUDING WITHOUT LIMITATION COURSE INSTRUCTIONS, ASSIGNMENTS AND MATERIALS), BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE NNOXX PRODUCTS AND SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE NNOXX PRODUCTS AND SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF NNOXX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event will NNOXX's total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of two hundred and fifty dollars (U.S.$250.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. You hereby release NNOXX and each NNOXX Party from all obligations, liability, claims or demands in excess of this limitation.
11. Third Party Distribution Channels, Websites and Content.
11.1 NNOXX offers software applications that may be made available through the Apple App Store, the Google Play Store or other distribution channels (“Distribution Channels”). If you obtain such software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms is between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third party products and services.
11.2 With respect to software apps that are made available for your use in connection with an Apple-branded product (such software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms, the following terms and conditions apply:
(a) NNOXX and you acknowledge that these Terms is concluded between NNOXX and you only, and not with Apple Inc. (“Apple”), and that as between NNOXX and Apple, NNOXX, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
(b) You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the usage rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
(c) Your license to use the Apple-Enabled Software is limited to a non-exclusive, revocable, non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
(d) Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
(e) Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be NNOXX’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
(f) NNOXX and you acknowledge that NNOXX, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(g) In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between NNOXX and Apple, NNOXX, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
(h) You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
NNOXX and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
11.3 The Site and Services may contain or include links to other websites (“Third-Party Websites") or content or other items belonging to or originating from third parties ("Third-Party Content"). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the Site or Services or any Third-Party Content posted on, available through, or installed from the Site or Services, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Site or cancel the Services and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Terms no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Site or Services or relating to any applications you use or install from the Site or through the Services. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.
12. Force Majeure. NNOXX will not be responsible or liable for any failure to perform, or for a delay in performance of, any obligation set forth herein, if such delay or failure to perform is caused by any event, act, or circumstance beyond our reasonable control, including, but not limited to, any act of God, natural disaster, strike, labor shortage, lock-outs, industry-wide shortages, supply chain issues, industrial actions by third parties, civil unrest, war, warlike conditions, acts of terrorism, riot, fire, explosion, storm, flood, earthquake, epidemic, pandemic, governmental order, rule, or regulation, or any other circumstance not presently contemplated.
13. U.S. Government Rights. The Services are “commercial items” as defined in Federal Acquisition Regulation (“FAR”) 2.101. If the Services are acquired by or on behalf of any agency not within the Department of Defense (“DOD”), our services are subject to the terms of these Terms in accordance with FAR 12.212 (for computer software) and FAR 12.211 (for technical data). If our services are acquired by or on behalf of any agency within the Department of Defense, our services are subject to the terms of these Terms in accordance with Defense Federal Acquisition Regulation (“DFARS”) 227.7202-3. In addition, DFARS 252.227-7015 applies to technical data acquired by the DOD. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data under these Terms of Use.
14. Miscellaneous.
14.1 These Terms will be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflict of law principles. These Terms shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of these Terms shall continue in full force and effect. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms or use of the Site or Services. You agree that these Terms will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.
14.2 Dispute Resolution and Binding Arbitration.
(a) YOU AND NNOXX ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OR USE OF NNOXX PRODUCTS OR SERVICES WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except to the extent expressly modified by this section. (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
(c) The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or these Terms are void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
(d) You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR WE WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER NNOXX CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
(e) If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
14.3 Unless otherwise provided in a writing signed by you and NNOXX, these Terms constitute the entire agreement between you and NNOXX relating to the NNOXX Software and the purchase and use of the NNOXX Products and Services and supersedes all prior or contemporaneous understandings regarding such subject matter. Failure by us to act on or enforce any provision of these Terms shall not be construed as a waiver of that provision or any other provision in these Terms. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.
14.4 Visiting the Site and using the Services, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site or otherwise through the Service, satisfy any legal requirement that such communication be in writing. YOU AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE OR OTHERWISE THROUGH THE SERVICES. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
14.5 CALIFORNIA USERS AND RESIDENTS: If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
14.6 These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. These Terms will inure to the benefit of our successors and permitted assigns.
14.7 If NNOXX needs to contact you about your product or account, you consent to receive the notices by email. You agree that any such notices that we send you electronically will satisfy any legal communication requirements, and we may assign or delegate any or all of our rights or obligations to others at any time.
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