This Agreement, as may be amended by Oxigen from time to time, is effective as of June 1, 2014 and governs the terms under which you may access and use Oxigen's websites (for purposes of this Agreement, "websites" includes our mobile applications) and the services associated with it (together, the "Service" or “Services”). By accessing and using the Service, you agree to the terms of the Agreement and that you accept them.
As used throughout this Agreement, the terms "Oxigen", "we", "us", and "our" refer to Oxigen USA Inc., a Delaware corporation, together with its employees, consultants, directors, officers, successors, affiliates, and assignees. The terms "you" and "your" refer to users of the Service, whether in their capacity as Senders, Recipients, or visitors to our websites.
1. SERVICE OVERVIEW
The Service was created to help our customers send mobile recharges, bill payments, and gifts (collectively referred to hereafter as “Value”) to family and friends. We recommend that you use the Service only to send Value to people you know personally. You should never use the Service to send Value to any person or persons who you do not know personally.
The Service allows people to send and receive Value around the world. A "Sender" is someone who uses the Service to send Value. A "Recipient" is someone who receives Value from a Sender through the Service. The "Recipient Country" is the country in which the Recipient receives Value through the Service. A "Transaction" is a specific instruction to send Value through the Service. The "Transaction Amount" is the amount that the Sender provides to Oxigen to send in connection with the Transaction. The "Payout Amount" is the amount paid out to the Recipient, excluding any taxes or charges that may be levied under the laws of the Recipient Country (the "Local Taxes").
2. SERVICE ACCESS
Eligible Users. The Service must have only one registered user per account. You must be at least eighteen (18) years old to access or use the Service as a Sender. Other restrictions may apply. Oxigen reserves the right to suspend or remove any person from using the Services who does not comply with the terms of the Agreement.
Mobile Services. The Service is accessible via a mobile device. To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply.
Not Available to Certain Users. The Service may not be available in whole or in part in different countries and jurisdictions as determined by local laws and regulations.
Registration. In order to use the Services, you must register an Oxigen account (“Account”) or provide your valid email address to use our guest checkout feature. When you register an Account, we will ask you for contact information, including your name, mailing address, phone number, and email address. The information that you provide at the time of account opening must be accurate and complete, and you must inform us in a timely fashion of any changes to such information. We may require additional information about you such as, for instance, your date of birth, tax identification number or government-issued identification, and we may also obtain information about you from third parties, such as credit bureaus and identity verification services. We have the right to reject your account registration, or to later close your Account, if you do not provide us with accurate, complete and satisfactory information.
Prohibited Accounts. Use of the Services is subject to the laws and regulations of the United States regarding the prevention of terrorist financing and anti-money laundering. You agree and acknowledge that your use of the Services does and will comport with such laws and regulations, including, without limitation, the sanctions programs administered by the Office of Foreign Assets Control of the United States Department of the Treasury.
Charges. For certain Transactions that you may submit, you agree to pay us a transfer fee (the "Transfer Fee") plus the Transaction Amount. Additional charges may apply. Payment is due at the time your Transaction is submitted for processing. Oxigen only accepts payment in U.S. Dollars. If you submit a Transaction that results in Oxigen's being charged non-sufficient fund fees, chargeback fees, or other similar fees, you agree to reimburse us for all such fees. In some instances, for Transactions funded from the Sender's bank account, you agree that Oxigen may debit your bank account for less than the amount of the transfer, as part of our effort to confirm ownership of the account.
Payment. In order for us to collect payment from you, you authorize us to access, charge, or debit funds from any of the payment instruments you provide us in connection with your use of the Service (each, a "Payment Instrument") including, for example, your credit card, debit card or bank account, and you affirm that you have all necessary rights and authority to obtain funds from that Payment Instrument. If your payment fails or is insufficient, you authorize us to resubmit using the same or a different Payment Instrument. For example, if there are insufficient funds in your bank account at the time you submit your Transaction, we may try to debit your bank account or charge your credit card at a later time. You represent and warrant that you are the lawful owner of your Payment Instrument(s).
Other Charges. Oxigen is not responsible for any fees or charges that may be imposed by the financial institutions associated with your Payment Instruments. Oxigen is not responsible for any non-sufficient funds charges, chargeback fees, or other similar charges that might be imposed on you by your bank, credit card issuer, or other provider.
Foreign Currencies. Oxigen and its Service Providers (defined below) make money when you pay for a Transaction in one currency and the Transaction is paid out in another currency. You agree, when you send a Transaction to a Recipient's bank account, that the bank account is denominated in the same currency as the Transaction.
4. TRANSACTION PAY OUTS
Service Providers. We work with local banking partners, money exchange houses, and other third party service providers (each, a "Service Provider") to pay funds out to Recipients. Many Transactions are fulfilled by Oxigen Services (India) Pvt. Ltd. and are subject to the reliability and performance of its platform. You, in your capacity as a Sender, hereby appoint your Recipient as your agent for the purpose of receiving funds in connection with the Service. We attempt to provide up-to-date information on our websites regarding the location, availability, and hours of our Service Providers. However, you agree that Oxigen is not responsible for any inaccurate or incomplete information that may be posted on its websites. Our money transfer service is powered and hosted by Royal Exchange (USA), Inc., a New Jersey Corporation located at 1155 Green St, Iselin, NJ 08830. Royal Exchange is an overseas principal agent of the Money Transfer Services Scheme license issued by Reserve Bank of India and maintains money transmitter licenses in New Jersey (License #L066192) and Florida (License #FT23000007B). The funds for your money transfer will be deducted and processed by Royal Exchange.
Verification. Recipients may be required to prove their identity before receiving funds by presenting valid, unexpired identification document(s) from a list of acceptable forms of identification, such as a government-issued photo ID, proof of residence, or other forms of identification legally accepted in Recipient’s country. In addition, Recipients may be required to provide a Transaction number, a personal identification number (or PIN), a "password", a "secret word", and/or another, similar identifier associated with their Transaction. You give Oxigen permission to store all such data, as necessary to provide the Service.
5. TRANSACTION RESTRICTIONS
General. We may, at any time and in our sole discretion, refuse any Transaction or limit the amount to be transferred, either on a per Transaction basis or on an aggregated basis without prior notice. Any such limits may be imposed on individual accounts, linked accounts, or on related accounts or households, in Oxigen's sole discretion. We reserve the right at any time, and from time to time, to modify or discontinue the Service (or any part thereof) with or without notice.
Delays. Your Transaction may be delayed or cancelled in the course of our efforts to verify your identity, validate your Transaction instructions and Payment Instruments, contact and locate you or your Recipient, and otherwise comply with applicable law. Business hours and currency availability of our Service Providers may also cause delays. Nevertheless, you may be entitled to a refund in certain circumstances, as described below in Section 12- Refunds.
Commercial Transactions. The use of the Service for commercial purposes is prohibited. You agree that you will only use the Service to send Value to people that you know personally and for personal reasons. If Oxigen discovers you are using the Service to purchase goods or services, we may cancel your Transaction(s) and close your account. Notwithstanding, you are not prohibited from paying for phone, Internet, utility, or other services shown on our website on behalf of the Recipient.
Unauthorized Transactions. You may not use the Service in violation of this Agreement or applicable laws, rules or regulations. It is a violation of the Agreement to use the Service for your own commercial purposes, including (without limitation) for purchases of goods or payments for services of any kind from a company or other commercial entity for your use or consumption as the Sender. Oxigen may cancel any Transaction and close any account that it suspects is being utilized for any of the following activities (without limitation): sexually-oriented materials or services; gambling activities; fraud; money-laundering; funding terrorist organizations; purchase or sale of narcotics, firearms, ammunition, explosives, weapons, knives, or other controlled substances; or sending Value to a Recipient that has violated the Agreement. If you use the Service in connection with illegal conduct, Oxigen reserves the right to report you to the appropriate law enforcement agency or agencies.
Ineligibility. Not all Payment Instruments are available to all customers at all times. We may, in our sole discretion, refuse Transactions funded from certain Payment Instruments. We may, at our sole discretion, refuse Transactions from certain Senders and to certain Recipients, including without limitation, entities and individuals that are included on the Specially Designated Nationals list, Non-cooperative Countries and Territories list, and such other lists as may be issued from time to time by the U.S. Department of Treasury and other government agencies.
Others. You may not submit or receive a Transaction (i) on behalf of any other person, (ii) on behalf of a business or other non-human entity or (iii) on behalf of a charitable organization without Oxigen's express consent. We may, at any time and in our sole discretion, (A) refuse any Transaction, or (B) close multiple accounts held by an individual, persons related to the individual or persons living in the same household as the individual.
No Changes. We do not let you change the details of your Transaction once it has been submitted to us for processing. It is your responsibility to make sure your Transaction details are accurate and we are not responsible for any losses or damages resulting from incorrect Transaction details that you have provided. You may cancel a money transfer within 30 minutes from the time your order was place using the electronic method provided, however, if you choose to cancel or make changes to your transaction after 30 minutes from the time your order was placed, then you may be charged a $20 cancellation fee at our discretion.
Images are indicative in nature. Every cake or confectionery item we offer is handcrafted by expert local bakers, and since each chef has certain unique creative techniques, slight variations in the product in terms of design are possible. Each cake meets our strict quality, purity, and taste standards.
Certain specialty gift products cannot be combined with other gifts or flowers, and will be delivered separately.
If an item is not available it will be substituted with an item of equal or higher value, but it will not be refundable.
Best efforts will be made to deliver your order and if the recipient is not available we may deliver to a safe and secure location such as the front gate, reception, or neighbor, but if the recipient's premises are locked or if security does not permit delivery, then we will be unable to cancel or refund the order.
If you make an error while entering your recipient's details, please inform us as soon as possible and we will do our best to amend your order, but orders with incorrectly-submitted order details are not refundable.
If you email us with a valid and legitimate complaint that is consistent with these terms within 72 hours from the time of delivery, then we will refund some or all of the order value, depending on the circumstances.
Delivery of Courier Products: Notwithstanding anything contained in the Shipping Disclaimer or in the Terms and Conditions, in the event the order is made to deliver through any courier agency or any third party, Oxigen USA does not make any representation or warranty in relation to the delivery of such order.
The products will be delivered through Blue Dart or any other courier company and the delivery made by them are subject to the Terms and Conditions of such courier companies.
For products that are shipped using the services of our courier partners, the date of delivery is an estimate. Your order may be delivered a day prior or a day after the chosen date of delivery.
You acknowledge that requested delivery date is non-binding. Estimated delivery date depends on the availability of the product and the destination to which you want the product to be shipped.
Our courier partners do not call prior to delivering an order, so we recommend that you provide an address at which someone will be present to receive the package. The delivery cannot be redirected to any other address.
No deliveries are made by third party courier agencies on a Sunday and Public Holidays.
All courier orders are carefully packed and shipped from our warehouse. Soon after the order has been dispatched, you will receive a tracking number that will help you trace your order.
Courier partners sometimes have some delays due to holidays and strikes.
In case if the recipient is unavailable, we will attempt delivery twice and in case delivery location is incorrect or the recipient refuses to take the delivery, the delivery shall be deemed to have been made. The courier company will attempt to deliver the package twice before the parcel returns back to the point of origin.
In the event the delivery is not executed during the attempts, you shall still be charged for the order.
We will consider the order executed in the below cases:
In case if the recipient is not available, he/she can inform the delivery person to deliver the order to the gate/reception/neighbour.
6. PROHIBITED ACTIVITIES
By using the Oxigen website or the Service, or in the course of your interactions with Oxigen, a Sender, Recipient or a third party and, in addition to other restrictions in this Agreement, you will not:
You agree that we may seize or freeze Account funds that are reasonably deemed by us to be in accounts as a result of fraud or a prohibited behavior outlined in this section, or if we reasonably believe that your actions may present a potential damage or loss to us.
The Services may include links or references to other web sites or services solely as a convenience to users (" Reference Sites " or “Third Party Links”). We do not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services are solely between you and such advertiser. ACCESS AND USE OF REFERENCE SITES OR THIRD PARTY LINKS, INCLUDING THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES ON OR AVAILABLE THROUGH REFERENCE SITES IS SOLELY AT YOUR OWN RISK.
7. IDENTITY VERIFICATION
We will obtain, verify, and record information that identifies each person who registers to use the Services. When you register to use the Services, we will ask for identifying information, which may include your name, residential address, date of birth, and other information that will allow us to identify you to our satisfaction. By registering for the service, you also consent to us using third party sources to verify your identity. If we cannot verify your identity, and in certain other cases, we may not be able to allow you to use the Services.
Verifying Information. You authorize us, directly or through third parties, to make any inquiries we consider necessary to verify your identity. This may include asking you for additional information, requiring you to take steps to confirm ownership of your telephone numbers, e-mail addresses or financial instruments you identify, obtaining a credit report, or verifying your information against third party databases or through other sources.
9. ACCOUNT PASSWORDS, UNAUTHORIZED TRANSACTIONS AND RISK OF LOSS
You represent and warrant that the information you provide to us on registration and at all other times, will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times.
If you have reason to believe that your Account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your Oxigen username, PIN, or Password), then you agree to immediately notify us by emailing Oxigen Customer Service at .
IN THE EVENT OF A LOSS, THEFT OR UNAUTHORIZED DISCLOSURE OF YOUR OXIGEN USERNAME, PIN, OR PASSWORD, THERE IS A RISK YOU COULD LOSE ALL THE MONEY IN YOUR OXIGEN ACCOUNT, CREDIT OR DEBIT CARD ACCOUNTS, AS WELL AS MONEY IN YOUR BANK ACCOUNT IF YOU DO NOT CONTACT US IMMEDIATELY. YOU AGREE TO ACCEPT THIS RISK.
10. ERRORS AND PROBLEMS
Errors. You have a right to dispute errors in your Transaction except for errors resulting from incorrect Transaction details that you have provided. If you think there is an error, contact us within 14 business days of the Transaction at . You are responsible for providing valid Transaction information. Oxigen has no obligation to refund you any amount for Transactions that fail due to invalid Transaction information provided by you (e.g. invalid account numbers, operator-region combinations, recipient account types). You can also contact us for a written explanation of your rights.
For additional information, please visit the Help section from your account profile while logged into your account.
General. Please let us know if you have any problems with the Service. You can contact us using the contact information at the bottom of this Agreement. Residents of certain jurisdictions may also consider the following:
For transactions involving the transfer of money as an individual (not a business), you can cancel your transaction for a full refund within 30 minutes of authorizing your money transfer transaction, unless the funds have already picked up, deposited or delivered to the Recipient. After 30 minutes, we do not provide refunds unless we did not process your Transaction according to your instructions or we are unable to pay out the Transaction. We will use our best efforts to rectify any reasonable, inadvertent transactions, however, if you choose to cancel or make changes to your transaction after 30 minutes from the time your order was placed, then you may be charged a $20 cancellation fee at our discretion.
You are responsible for providing valid Transaction information. Oxigen has no obligation to refund you any amount for Transactions that fail due to invalid Transaction information provided by you (e.g. invalid account numbers, recipient names, operator-region combinations, recipient account types). Under certain circumstances, we may issue you a refund for a Transaction with invalid transaction information less a 10% processing fee. If you fail to answer questions required to verify your identity during our transaction review process, a 10% processing fee will be deducted from any refund that you request.
To request a refund for Transactions with valid transaction information that fail, please contact Customer Service (See Contact Information). Refunds can only be credited to the same Payment Instrument used to pay for the Transaction without any exceptions. Refunds are only made in U.S. dollars. Refund amounts may be adjusted to account for changes in the value of the U.S. dollar or foreign currency from the time your Transaction was submitted.
12. OWNERSHIP; PROPRIETARY RIGHTS
The Service, including but not limited to the content of our websites, text, graphics, links, buttons, logos, and images, are: © 2014-2016 Oxigen USA Inc. All Rights Reserved. The Service, as well as all other Oxigen patents, copyrights, trademarks, trade secrets, service marks, logos, and product and service names are owned exclusively by Oxigen (the "Oxigen Intellectual Property"). You agree not to display, use, copy, or modify the Oxigen Intellectual Property in any manner. You are authorized solely to view and retain a copy of the pages of our websites for your own personal, non-commercial use. You further agree not to: (i) engage in or use any automated devices, data mining, robots, scraping or similar data gathering or extraction methods to access or use the Service; (ii) modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service, in whole or in part, except that the foregoing does not apply to the information that you legally upload to the Service; (iii) remove or alter any author, trademark or other proprietary notice or legend displayed on our websites (or printed pages thereof); or (iv) infringe Oxigen's or any third party's copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy.
Oxigen, the Oxigen logo, and all other product or service names or slogans displayed on Oxigen’s website are registered and/or common law trademarks of Oxigen in the United States and/or other countries and may not be copied, imitated or used, in whole or part.
The technology and software underlying the Service or distributed in connection therewith are the property of Oxigen, its affiliates and Service Providers (the "Software"). Subject to the terms and conditions of this Agreement, Oxigen hereby grants you a personal, non-transferable, revocable and non-exclusive right and license to use the object code of any Software on your device(s) solely in connection with the Service, without the right to sublicense, provided that you agree not to copy (except as expressly provided herein), modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Oxigen.
13. NO AGENCY OR PARTNERSHIP
Oxigen is exclusively an independent contractor and is not your agent or partner.
14. RELEASE OF LIABILITY FOR PRODUCTS OR SERVICES PAID FOR USING OXIGEN
Oxigen does not have control over or liability for products or services paid for using the Services. YOU HEREBY AGREE TO RELEASE US FROM, AND IRREVOCABLY WAIVE ANY RIGHT YOU MIGHT HAVE TO MAKE, ANY CLAIM IN CONNECTION WITH SUCH PRODUCTS OR SERVICES.
15. TERMINATION; AGREEMENT VIOLATIONS
You agree that we, at our sole discretion, for any or no reason, and without penalty, may suspend or terminate your Account (or any part thereof) or your use of the Services. We may also at our sole discretion and at any time discontinue providing access to the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services or any Account you may have may be effected without prior notice, and you agree that we will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies we may have at law or in equity. Upon termination for any reason, you agree to immediately stop using the Services and to uninstall and/or destroy all copies of the software, any accompanying documentation, and all other associated materials.
If your Account is terminated as described above, or dormant, we may close your Account and you must immediately repay any amount that is more than the balance on your Account, plus any applicable fees. If there is a balance, you can request it to be returned and, subject to a $10.00 administration fee, we will send the balance by check to the address associated with your Account.
You may terminate this Agreement at any time by deleting your account from your account profile while logged in.
16. DISCLAIMER; NO WARRANTIES
WE PROVIDE THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, " WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. OXIGEN, AND ITS THIRD PARTY SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE DATA, OXIGEN SOFTWARE, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SERVICES OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, OXIGEN AND ITS AFFILIATES AND THEIR RESPECTIVE SUBSIDIARIES, DIRECTORS, SHAREHOLDERS, OFFICERS, AGENTS, THIRD PARTY SUPPLIERS, VENDORS, SERVICE PROVIDERS, LICENSORS, PARTNERS, EMPLOYEES, AND CONSULTANTS, DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
You agree to indemnify, save and hold Oxigen and its affiliates and their respective subsidiaries, directors, shareholders, officers, agents, third party suppliers, vendors, Service Providers, licensors, partners, employees, and consultants harmless from any and all claims, losses, damages, and liabilities, costs and expenses, including without limitation legal fees and expenses, arising out of or related to your use or misuse of the Services, any violation by you of this Agreement, or any breach of the representations, warranties, and covenants made by you herein. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, including rights to settle, and you agree to cooperate with our defense and settlement of these claims. We will use reasonable efforts to notify you of any claim, action, or proceeding brought by a third party that is subject to the foregoing indemnification upon becoming aware of it.
18. LIMITATION OF LIABILITY
IN NO EVENT WILL OXIGEN, ITS AFFILIATES OR THEIR RESPECTIVE SUBSIDIARIES, DIRECTORS, SHAREHOLDERS, OFFICERS, AGENTS, THIRD PARTY SUPPLIERS, VENDORS, SERVICE PROVIDERS, LICENSORS, PARTNERS, EMPLOYEES, AND CONSULTANTS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, (INCLUDING WITHOUT LIMITATION LOST BUSINESS OPPORTUNITIES, LOST REVENUES, OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO: (I) THIS AGREEMENT, (II) THE SERVICES OR ANY REFERENCE SITE, (III) YOUR USE OR INABILITY TO USE THE SERVICES (INCLUDING WITHOUT LIMITATION ANY AND ALL MATERIALS) OR ANY REFERENCE SITES, OR (IV) ANY OTHER INTERACTIONS WITH ANOTHER OXIGEN USER IN CONNECTION WITH THE SERVICES, EVEN IF OXIGEN OR A OXIGEN AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING, VIRUS TRANSMISSION OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES, YOUR OXIGEN ACCOUNT, OR ANY INFORMATION CONTAINED THEREIN. IN NO EVENT WILL OXIGEN’S, ITS AFFILIATES' AND ANY OF THEIR RESPECTIVE SUBSIDIARIES’, DIRECTORS’, SHAREHOLDERS’, OFFICERS’, AGENTS’, THIRD PARTY SUPPLIERS’, VENDORS’, SERVICE PROVIDERS’, LICENSORS’, PARTNERS’, EMPLOYEES’, AND CONSULTANTS’ MAXIMUM CUMULATIVE LIABILITY TO YOU FOR ALL DAMAGES, LIABILITIES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO (I) THIS AGREEMENT, (II) THE SERVICES, (III) YOUR USE OR INABILITY TO USE THE SERVICES (INCLUDING ANY AND ALL MATERIALS) OR ANY REFERENCE SITES, OR (IV) ANY OTHER INTERACTIONS WITH OXIGEN OR ANOTHER OXIGEN USER, HOWEVER CAUSED AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR USING THE PORTION OF THE SERVICES GIVING RISE TO THE CAUSE OF ACTION OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER.
19. GOVERNING LAW; ARBITRATION
These Terms will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without reference to conflict of law or choice of law provisions, and applicable federal law (including the Federal Arbitration Act). All activities performed in connection with the Services shall be deemed to have been performed in Massachusetts. If a disagreement or dispute in any way involves the Services or the terms of the Agreement and cannot be resolved between you and us with reasonable effort, the disagreement or dispute shall be resolved exclusively by final and binding administration by the American Arbitration Association (AAA), and will be conducted before a single arbiter pursuant to the applicable Rules and Procedures established by the AAA. You agree that the arbitration shall be held in the Commonwealth of Massachusetts, or at any other location that is mutually agreed upon by you and us. You agree that the arbiter will apply the laws of the Commonwealth of Massachusetts consistent with the Federal Arbitration Act, and will honor and agree to all applicable statutes of limitation. You agree that, unless prohibited by law, there shall be no authority for any claims to be arbitrated on a class or representative basis, and arbitration will only decide a dispute between you and us. Arbitration proceedings must be initiated within 1 year after the disagreement or dispute arises. If any part of this Arbitration clause is later deemed invalid as a matter of law, then the remaining portions of this section shall remain in effect, except that in no case shall there be a class arbitration.
THE PARTIES ACKNOWLEDGE AND AGREE THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS ARBITRATION PROVISION, THEY ARE WAIVING ALL RIGHTS TO A TRIAL BY COURT OR JURY AS A MEANS OF RESOLVING ANY DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT. THEY ACKNOWLEDGE THAT ARBITRATION WILL LIMIT THEIR LEGAL RIGHTS, INCLUDING THE RIGHTS TO PARTICIPATE IN A CLASS ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO CONDUCT FULL DISCOVERY, AND THE RIGHT TO APPEAL (EXCEPT AS PERMITTED UNDER ANY STATUTE GOVERNING ARBITRATIONS CONDUCTED UNDER THIS AGREEMENT).
We may update or change this Agreement from time to time. Except as otherwise provided in this Agreement, we will notify you of any changes by electronic mail or by posting a link to the amended Agreement on our website. If you continue to use the Services after we provide notice of such changes, your continued use constitutes an acceptance of the amendment or modification and an agreement to be bound by them. If you do not agree to the amended Agreement, you must close your Account and discontinue your use of the Services. You agree that you shall not modify this Agreement and acknowledge that any attempts by you to modify this Agreement shall be void.
21. ELECTRONIC COMMUNICATIONS
Electronic Documents shall be deemed received by you when they are posted on this Website or received by your internet service provider's mail server, even if you have not retrieved your e-mail. You acknowledge your receipt, review, understanding and acceptance of the Electronic Documents by your use of the Services.
You may withdraw your consent to receive all Communications electronically, but if you do, your use of the Service shall be terminated. In order to withdraw your consent, you must contact us using our contact information at the end of this Agreement.
In order to access and retain Communications, you must have: (i) an Internet browser that supports at least 128-bit encryption, (ii) an e-mail account and the capability to read e-mail from Oxigen, and (iii) a device and Internet connection capable of supporting the foregoing.
Customer Updates. You must promptly update us with any change in your e-mail address and telephone number by updating your profile on our websites. If Oxigen does not have correct contact information, Oxigen may not be able to notify you with important information or changes in your Transaction status.
Severability. If any provision of this Agreement is held to be unlawful, void, invalid or otherwise unenforceable, then that provision will be limited or eliminated from this Agreement to the minimum extent required, and the remaining provisions will remain valid and enforceable.
Assignment. You may not transfer or assign this Agreement and any rights granted hereunder. You agree and acknowledge that we may assign or transfer this Agreement without consent. Any assignment attempted to be made in violation of this provision shall be void and of no effect.
Waiver. The failure of Oxigen to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by Oxigen.
Notices. Except as otherwise set forth in this Agreement, all notices to us must be sent by first-class mail to Oxigen USA, Inc., Attention: General Counsel, One Broadway, 14th Floor Cambridge, Massachusetts 02142.
Special Notice for International Use; Export Controls. Software available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Force Majeure. Neither you nor we will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications, utility, or power failures, equipment failures, labor strife, riots, war, nonperformance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control; provided that the party has procedures reasonably suited to avoid the effects of such acts.
Survival. Upon termination or expiry of this Agreement, any provision which, by its nature or express terms should survive, will survive such termination or expiration as applied to Transfers and the relationship prior to such termination or expiration, including, but not limited to, Sections 3, 10, 13, 14, 16, 17, 18, 19, 20.
We have implemented security measures designed to secure your information from accidental loss and form unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized persons will never gain access to your information, and you acknowledge that you provide your information at your own risk, except as otherwise provided by applicable law. If you think you have been or might be a victim of fraud, please contact us immediately by email at . If you are aware of anyone or any entity that is using the Service inappropriately, please e-mail us at . If you receive any fake (phishing) e-mails purporting to be from Oxigen, please forward them to us at .
24. CONTACT INFORMATION
Questions, notifications, complaints and requests for refunds or further information can be sent to Oxigen by email at or by mail at Oxigen USA, Inc., Attention: Customer Service, One Broadway, 14th Floor Cambridge, Massachusetts 02142, USA.