Terms & Conditions

Last Updated: March 7, 2019

These Terms & Conditions of Use, the “Exo Terms”, are a legal agreement between you and Westhill Innovation, LLC, a Delaware limited liability company, its subsidiaries, affiliates and assigns, d/b/a Exo (“Exo”) that governs your access to and use of www.exosmartspark.com (“Exo Site”); and all related webpages and all downloadable materials, information, photos, and other materials, documentation, or content that appears on the Exo Site (“Exo Content”); and relates to the multiport docking station(s) (“Exo Docking Station”); and the power card(s) (“Exo Power Card”). The Exo Docking Station(s) and Exo Power Card(s), including accessories, are collectively referred to herein as the “Exo Product”. The Exo Site, Exo Content, and the Exo Product are collectively referred to herein as the “Exo Platform”. The Exo Platform also shall include all materials that are incorporated into, made available through or are otherwise a part of the Exo Platform (and all past, present and future versions of the Exo Platform); any and all copyrightable material (including source and object codes); and all other materials related to the Exo Platform. References to “you” or “your” mean anyone who uses the Exo Platform or uses the Exo Product, whether you do so as an individual or for an entity you represent.

PLEASE READ THE EXO TERMS CAREFULLY BEFORE USING THE EXO PLATFORM OR USING THE EXO PRODUCT. BY USING THE EXO PLATFORM OR THE EXO PRODUCT YOU AGREE TO BE BOUND BY THE EXO TERMS AND ANY ADDITIONAL TERMS THAT MAY BE PROVIDED OR PRESENTED TO YOU, ALL OF WHICH ARE INCORPORATED INTO THE EXO TERMS BY THIS REFERENCE. IF YOU ARE AGREEING TO THE EXO TERMS ON BEHALF OF A COMPANY OR OTHER ENTITY OTHER THAN A NATURAL PERSON, THEN YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THE EXO TERMS. IF YOU DO NOT AGREE, DO NOT USE THE EXO PLATFORM OR THE EXO PRODUCT.

THE EXO TERMS CONTAIN WARRANTY DISCLAIMERS AND OTHER PROVISIONS THAT LIMIT OUR LIABILITY TO YOU. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AND IN THEIR ENTIRETY, AS USING, ACCESSING, AND/OR BROWSING THE EXO SITE OR USING THE EXO PLATFORM OR THE EXO PRODUCT CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO BE BOUND TO EACH AND EVERY TERM AND CONDITION SET FORTH HEREIN, PLEASE DO NOT USE THE EXO PLATFORM OR THE EXO PRODUCT; EXIT THE EXO SITE IMMEDIATELY AND DO NOT USE, ACCESS, AND/OR BROWSE IT FURTHER.

YOU ARE DIRECTED TO READ SECTION 17. SECTION 17 CONTAINS A BINDING ARBITRATION CLAUSE WHICH AFFECTS HOW DISPUTES ARE RESOLVED.

1. MODIFICATIONS

Exo reserves the right, at its sole discretion, to change, modify, add or remove portions of the Exo Terms at any time, all of which changes, modifications and additions or removed portions shall be incorporated into the Exo Terms upon posting on the Exo Platform or, for purchasers and users of the Exo Product, upon email notification or notification by mail to the address provided by the purchaser or user to Exo. You agree you are sufficiently notified of the updated terms when the terms are made available via the Exo Platform, or via email or mail notification to purchasers and users of the Exo Product, and that your use of the Exo Platform after posting of the updated terms, or your use of the Exo Product after notification by email or mail to purchasers and users constitutes your agreement to the updated terms. Therefore, you should review the Exo Terms before you use the Exo Product and any time you use the Exo Platform. The updated terms will be effective as of the time of posting, or such later date as may be specified in the updated terms, and will apply to your use of the Exo Platform and the Exo Product from that point forward.

2. DISCLAIMER

Prices and product availability are subject to change, at any time, without notice. Exo also reserves the right, at any time, without notice, to discontinue products, make changes to the design or specifications of its products, and to make changes to any specials, promotions or services offered on the Exo Site. All specials and promotions are limited to stock on hand, and Exo reserves the right to limit quantities on products offered through promotions and specials.

3. PURCHASES; OTHER TERMS OF USE

Additional terms and conditions of use may apply to purchases of goods or services, and to particular portions of the Exo Site, including specials and promotions or other similar features, all of which terms are made part of the Exo Terms by this reference. You agree to abide by such other terms and conditions of use. If there is a conflict between the Exo Terms and the terms posted for or applicable to a particular feature of the Exo Site or service offered through the Exo Site, the latter terms shall control with respect to your use of that portion of the Exo Site or the specific service. Exo’s obligations, if any, with respect to its products and services are governed solely by the agreements pursuant to which they are provided, and nothing on the Exo Site or in the Exo Terms should be construed to alter such agreements.

4. OWNERSHIP OF THE EXO PLATFORM

Unless otherwise specified in the Exo Terms, the Exo Platform is owned, controlled or licensed by Exo and is protected from unauthorized use, copying and dissemination by copyright, trademark, patent, publicity and other laws, rules, regulations and international treaties. Except as specifically permitted in the Exo Terms, no part of the Exo Platform may be reproduced in any form, or by any means, without prior written permission from Exo; visitors to the Exo Site or users of the Exo Platform may not modify, distribute, publish, transmit or create derivative works of any of the Exo Platform for any public or commercial purposes, and any unauthorized use of the Exo Platform is prohibited.

5. YOUR LICENSE TO USE THE EXO PLATFORM

Except as expressly provided in the Exo Terms: (a) you will not use the Exo Platform in a manner that suggests an association with any of Exo’s products or services; (b) you will make no modifications to the Exo Platform; (c) whether or not for your benefit, you will not (i) copy or adapt the object code of any Exo Platforms' software, HTML, JavaScript or other code; or (ii) reverse engineer, decompile, reverse assemble, modify or attempt to discover any source code that the Exo Platform creates to generate its web pages or any software or other products or processes accessible through the Exo Platform; and (d) insert any code or product to manipulate the Exo Platform in any way.

You also agree that you will not: (a) use any “deep link”, “robot”, “spider”, “rover”, “page-scrape”, or any other automatic device, program, algorithm, mining technology or methodology or any similar or equivalent manual process to monitor, cache, frame, mask, extract data from, copy or distribute the Exo Platform, except as may be a result of standard search engine or Internet browser usage; (b) modify, frame, reproduce, archive, sell, lease, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Exo Platform in any way except as specifically permitted by the Exo Terms or otherwise authorized in writing by Exo; or (c) provide access to the Exo Platform via any medium without the prior written consent of Exo.

6. USER CONTENT; CUSTOM LOGOS AND ARTWORK

Exo may require, or you may request, that your content, including any custom logos or artwork printed on the Exo Product (“User Content”) be displayed in the Exo Platform or any marketing materials for promotional or other purposes. For example, Exo may wish to display your User Content, such as your printed custom logos and artwork, on the Exo Site for promotional purposes; or Exo may provide your User Content, such as your printed custom logos and artwork or other business information, to customers or potential customers through the Exo Platform or any marketing materials. To the extent that you provide Exo with any User Content, you hereby grant Exo a nonexclusive, worldwide, royalty-free, fully paid, transferable, sub-licensable, perpetual, irrevocable license to copy, display, transmit, perform, distribute, store, modify, and otherwise use your User Content, including custom printed logos and artwork, for promotional purposes or for any purpose in connection with the operation of the Exo Platform. You represent and warrant that you have all the rights necessary to grant the rights in this Section 6 and that the use of your User Content will not violate any laws. You must not provide any User Content that infringes on others’ intellectual property or privacy rights, and you are solely responsible for all User Content you provide to Exo.

7. PRIVACY; WARRANTY; START-UP GUIDE & USER MANUAL

Exo’s Privacy Policy (“Exo Privacy Policy”) applies to use of the Exo Site, and its terms are made a part of the Exo Terms by this reference. The Exo Privacy Policy can be viewed on the Exo Site at www.exosmartspark.com.

Exo warrants the Exo Product against defects in material and workmanship when the Exo Product is purchased directly from Exo or an authorized seller of the Exo Product, and when the Exo Product is used in accordance with the Exo Start-Up Guide & User Manual (“Exo Manual”). The Exo Warranty extends only to the original purchaser and is for a period of ONE (1) YEAR from the date of the original purchase. The Exo Warranty, including all exclusions, exceptions and conditions, and the Exo Manual are made a part of the Exo Terms by this reference. The Exo Warranty can be viewed on the Exo Site at www.exosmartspark.com. The Exo Manual can be viewed on the Exo Site at www.exosmartspark.com.

8. THIRD-PARTY LINKS, APPLICATIONS AND CONTENT

There may be links from the Exo Platform, or communications you receive from the Exo Platform to third-party sites (“Linked Sites”), or our Exo Platform may include third-party content that we do not control, maintain or endorse. Accessing those third-party sites requires you to leave the Exo Platform. For example, Exo uses a third-party payment service known as Authorize.Net. Linked Sites, such as Authorize.Net, are provided solely as a convenience to visitors of the Exo Site and Exo does not control those Linked Sites or any of the content contained therein, and you expressly acknowledge and agree that Exo is in no way responsible or liable for any of those Linked Sites, including, without limitation, their content, policies, failures, promotions, products, services, actions and/or any damages, losses, failures or problems caused by, related to or arising from those third parties or their sites.

YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH AUTHORIZE.NET AND ANY OTHER THIRD PARTIES FOUND ON OR THROUGH THE EXO PLATFORM, INCLUDING, WITHOUT LIMITATION, DEALINGS WITH RESPECT TO THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. EXO ENCOURAGES YOU TO REVIEW ALL POLICIES, RULES, TERMS AND REGULATIONS, INCLUDING THE PRIVACY POLICIES AND TERMS OF USE OF ANY THIRD-PARTY SITE THAT YOU VISIT.

9. YOUR WARRANTIES

You represent and warrant that: (a) you have the legal right and capacity to enter into the Exo Terms in your jurisdiction and to comply with the Exo Terms or, if you are a minor, your parent or legal guardian has read and agreed to the Exo Terms on your behalf; and (b) you hold and will continue to hold all rights necessary to enter into and perform your obligations under the Exo Terms.

10. OUR DISCLAIMER OF WARRANTIES

THE EXO PLATFORM IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. ALL INFORMATION PROVIDED ON THE EXO SITE IS SUBJECT TO CHANGE, AT ANY TIME, WITHOUT NOTICE. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, AND EXCEPT AS EXPRESSLY SET FORTH IN THE EXO WARRANTY, EXO MAKES NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE EXO PLATFORM; (B) THE MATERIALS OR ITEMS ON OR PROVIDED THROUGH THE EXO PLATFORM; (C) USER CONTENT OR WIDGETS, INCLUDING, WITHOUT LIMITATION, ANY PROMO CODES; (D) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE EXO PLATFORM; (E) ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT OR ON OR INCLUDED WITH THE EXO PLATFORM; OR (F) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO OR FROM THE EXO PLATFORM. IN ADDITION, EXCEPT AS SET FORTH IN THE EXO WARRANTY, EXO HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF ACCURACY, QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, FREEDOM FROM VIRUS, AND ANY WARRANTIES FOR HIDDEN OR LATENT DEFECTS. EXO DOES NOT REPRESENT OR WARRANT THAT THE EXO PLATFORM OR THE FUNCTIONS CONTAINED THEREIN WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE EXO PLATFORM OR THE SERVERS THAT MAKE SOME OF THE EXO PLATFORM AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. EXO DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE EXO PLATFORM IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. EXO DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTIONS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE EXO SITE AND/OR ANY EXO PRODUCTS OR SERVICES. EXO DOES NOT WARRANT THAT YOUR USE OF THE EXO PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND EXO SPECIFICALLY DISCLAIMS SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO THE EXO TERMS.

BY ACCESSING OR USING THE EXO PLATFORM, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE EXO PLATFORM.

EXO DOES NOT ENDORSE THE USER CONTENT OR COLLABORATIVE CONTENT, IS NOT RESPONSIBLE FOR THE USER CONTENT OR COLLABORATIVE CONTENT AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY (INCLUDING, WITHOUT LIMITATION, PERSONS WHO MAY USE OR RELY ON SUCH USER CONTENT OR COLLABORATIVE CONTENT) FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY USER CONTENT OR COLLABORATIVE CONTENT OBTAINED THROUGH THE EXO PLATFORM.

11. LIMITATION OF LIABILITY; WAIVER

TO THE MAXIUM EXTENT PERMITTED BY LAW AND UNDER NO CIRCUMSTANCES WILL EXO BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE EXO PLATFORM; (B) USER CONTENT OR WIDGETS, INCLUDING, WITHOUT LIMITATION, ANY PROMO CODES; (C) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE EXO PLATFORM; (D) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY EXO OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE EXO PLATFORM; (E) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER RIGHTS; (F) ANY ERRORS OR OMISSIONS IN THE EXO PLATFORM'S TECHNICAL OPERATION; OR (G) ANY DAMAGE TO ANY COMPUTER, HARDWARE, COMPUTER SOFTWARE, CELLULAR PHONE, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF EXO HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE EXO PLATFORM). IN NO EVENT WILL EXO BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. IN NO EVENT WILL EXO’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT EXO CHARGED YOU FOR THE INITIAL TRANSACTION, LESS SHIPPING AND TAXES. YOU AGREE THAT YOUR EXCLUSIVE REMEDY IS A REPLACEMENT OF EQUAL OR LESSER VALUE OF THE SAME TYPE OF PRODUCT. IF YOU BELIEVE YOU RECEIVED A DEFECTIVE PRODUCT; YOU MUST CONTACT EXO CUSTOMER SERVICE OR FOLLOW THE PROCEDURES SET FORTH ON THE EXO SITE RELATING TO WARRANTY RETURNS. YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF EXO’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY EXO, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED, CONTROLLED, OR UTILIZED BY EXO. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.

12. INDEMNIFICATION

You agree to defend, indemnify and hold Exo harmless from and against any and all claims, damages, costs, investigations, liabilities, judgments, settlements and expenses, including attorney’s fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) your use of the Exo Platform; (b) your breach (actual or alleged) or anticipatory breach of the Exo Terms; (c) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities, including any and all shipping and air travel requirements or disposal requirements relating to Lithium Ion batteries; (d) any misrepresentation made by you; or (e) Exo’s use of your information as permitted under the Exo Terms or any other written agreement between you and Exo. You will cooperate as fully required by Exo in the defense of any claim. Exo reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Exo.

13. TERM AND TERMINATION

Exo reserves the right to terminate your access to and use of the Exo Platform or any of the Exo Platform’s features, in its sole discretion, without notice and liability. Any violation of the Exo Terms may be referred to law enforcement authorities and prosecuted to the fullest extent allowed by law.

Exo also reserves the exclusive right to do any of the following, at any time, without notice: (a) modify, withdraw, suspend or discontinue, temporarily or permanently, any materials, information or content available on the Exo Platform, without limitation, in whole or in part, for any reason, and with or without notice; (b) modify or change the Exo Site, or any portion of the Exo Site and any applicable policies or terms; and (c) to interrupt the operation of the Exo Site, or any portion of the Exo Site, as necessary to perform maintenance or for any reason. You agree that Exo will not be liable to you or to any third party for any modification, suspension or discontinuance of the Exo Platform.

14. LOCATION AND TERRITORIAL RESTRICTIONS

Unless otherwise specified, the Exo Platform is made available for use in the United States.

The information provided on the Exo Platform is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Exo to any registration requirement within such jurisdiction or country. Anyone using or accessing the Exo Platform from locations outside of the United States does so on their own initiative and is responsible for compliance with any and all laws that are applicable. Exo reserves the right to limit the availability of the Exo Platform and/or any content, program, product, service or other feature described or available thereon to any person, geographic area, or jurisdiction, at any time and at Exo’s sole discretion, and to limit the quantities of any such content, program, product, service or other feature that we provide.

Software, products, or content related to or made available by the Exo Platform may be subject to United States export controls. Thus, no software from the Exo Platform may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software related to, or accessing any product from the Exo Platform, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.

You agree to comply with all rules, laws and regulations that are applicable to your use of the Exo Platform including, without limitation, those governing your transmission or use of any software or data.

15. SHIPPING, HANDLING AND AIR TRAVEL ADVISORY

CAUTION: The Exo Power Card is a Lithium-Ion battery, subject to various shipping regulations. The Exo Power Card cannot be shipped or mailed by air and must be ground shipped or mailed only (and certain package labelling is required). For further information, please contact your shipping agent.

CAUTION: Pursuant to Federal Aviation Administration Guidelines, Lithium-Ion batteries CANNOT be placed in checked baggage; therefore, to the extent that you plan to fly with any Exo Power Cards, they must be carried onboard. For further information, please see FAA carry-on regulations for flying with Lithium-Ion batteries.

16. SHIPPING POLICY

All products are shipped using a carrier service selected by Exo. Unless there are exceptional circumstances, Exo will make every effort to fulfill your order within 10 to 14 business days. All orders are subject to product availability. Additionally, events beyond our control can affect the delivery of our products after we provide them to the carrier, and the date of delivery may vary due to carrier shipping practices, delivery location, and the products ordered. Accordingly, Exo is not responsible for late shipment or delivery or for any loss or damages you may incur due to a delay in the shipment or delivery of your products. Products also may be delivered in separate shipments.

17. GOVERNING LAW; DISPUTES

(a) GOVERNING LAW. THESE TERMS AND THE INTERPRETATION OF THESE TERMS WILL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES.

(B) DISPUTES. IN THE EVENT THE PARTIES ARE UNABLE TO INFORMALLY RESOLVE ANY DISPUTE, CLAIM, DEMAND, CONTROVERSY OR CAUSE OF ACTION OF EVERY KIND AND NATURE WHATSOEVER KNOWN OR UNKNOWN, VESTED OR CONTINGENT, THAT SUCH PARTY MAY NOW HAVE OR AT ANY TIME IN THE FUTURE CLAIM TO HAVE, BASED IN WHOLE OR IN PART, OR ARISING FROM OR THAT IN ANY WAY IS RELATED TO THE EXO PLATFORM, THE USE OR ACCESS THEREOF, OR THE EXO TERMS, EXO PRIVACY POLICY OR EXO WARRANTY (COLLECTIVELY, THE “DISPUTES”), EACH OF THE PARTIES HEREBY ACKNOWLEDGES AND AGREES THAT THE DISPUTES WILL BE RESOLVED EXCLUSIVELY BY CONFIDENTIAL BINDING ARBITRATION PURSUANT TO THE JAMS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES, AND THE ARBITRATION SHALL BE CONDUCTED IN THE STATE OF CALIFORNIA. THE ARBITRATION WILL BE CONDUCTED BEFORE A SINGLE NEUTRAL ARBITRATOR WITH AT LEAST TEN YEARS’ EXPERIENCE WHO SHALL BE MUTUALLY AGREED UPON BY THE PARTIES, OR, IF THEY ARE UNABLE TO AGREE UPON THE CHOICE OF THE ARBITRATOR, THEN THE ARBITRATOR SHALL BE SELECTED BY JAMS IN ACCORDANCE WITH THE FOREGOING RULES. SUBJECT TO THE TERMS OF SECTION 12 ABOVE, THE FEES AND COSTS OF EACH PARTY INVOLVED IN THE ARBITRATION SHALL BE BORNE BY SUCH PARTY.

(C) JURY TRIAL WAIVER. EACH OF THE PARTIES HEREBY WAIVES TRIAL BY JURY IN ANY DISPUTES, WHICH WAIVER IS INFORMED AND VOLUNTARY.

18. DISPOSAL AND RECYCLING

(C) CAUTION. Exo Power Cards should not be disposed of in normal household waste and recycling. Similar to all products with Lithium Ion batteries, Exo Power Cards must be disposed of and recycled in a safe and environmentally conscious manner. Visit https://www.call2recycle.org or consent with your local area recycling center for acceptable Lithium Ion drop-off locations.

19. MISCELLANEOUS

The failure of Exo to insist on or enforce the strict performance of the Exo Terms shall not be construed as a waiver by Exo of any provision or any right it has to enforce the Exo Terms, nor shall the failure of Exo to act with respect to a breach of the Exo Terms by you constitute a waiver and will not limit Exo’s rights with respect to such breach or any subsequent breaches. No waiver by Exo of any of the Exo Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of Exo. Neither the course of conduct between the parties nor trade practice will act to modify the Exo Terms. Exo may assign its rights and duties under the Exo Terms to any party at any time without notice to you. The Exo Terms may not be assigned by you without Exo’s prior written consent. If any provision of the Exo Terms will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from the Exo Terms and will not affect the validity and enforceability of any remaining provisions. The section titles are inserted only as a matter of convenience and have no legal or contractual effect. You agree that the Exo Terms will not be construed against Exo by virtue of Exo having drafted them.

Exo will not be liable to you or be deemed to be in breach of its obligations under the Exo Terms for any delay or failure in performance caused by acts beyond Exo’s reasonable control, including, without limitation, acts of God, war, terrorism, accidents, fires, floods, strikes, labor disputes, shortages or delays in obtaining supplies or service, materials, labor, or transportation, interruption of utility services or the Internet, acts of any unit of government or any governmental agency, or any similar or dissimilar cause.

Notwithstanding termination of your use of the Exo Platform for any reason whatsoever, the following sections of the Exo Terms continue and survive: “Ownership of The Exo Platform,” “Your Warranties,” “Our Disclaimer of Warranties,” “Limitation of Liability; Waiver,” “Indemnification,” “Governing Law; Disputes” and “Miscellaneous.”