Prev | Next

Sarah & Melissa

Xytex was on the list of sperm banks given to us from our fertility clinic, but we had also heard of them from friends of ours who were searching for a sperm donor at the same time that we were.

Tell us a bit more about your background. What do you do for a living? Are you in the U.S.? Overseas? Married?

My wife, Sarah, and I (Melissa) are both elementary school teachers. We live in Pennsylvania and have been together since 2011. We were married in 2017 in Las Vegas.

When did you begin your Xytex search/ pregnancy journey?

We began our donor search in 2017, but we didn’t find our perfect donor and make a purchase from Xytex until the fall of 2018. We began TTC in March 2019 and became pregnant in August 2019.

Are you in a heterosexual couple, a same-sex couple, or are you a single mother by choice?

We are a same-sex couple.

What challenges did you face when trying to become pregnant, if any? How did you handle those challenges?

Being a same-sex couple, we knew we would obviously need the help of science to become pregnant. We also each wanted to eventually have the chance to try to carry a child. Since Sarah is 5 years older, we always knew she would try to get pregnant first. We struggled to decide if the IUI or IVF route was best for us. The chance of success is much higher with IVF, but so is the price tag. Ultimately, we decided to try IUI first, since it was less costly. However, after 3 failed IUIs we switched to IVF and also switched fertility clinics. We didn’t feel that our first clinic was a good fit for us (for many reasons) but the most important reasons were that they were unorganized. We didn’t feel that their monitoring was sufficient enough to help us get pregnant. We learned a tough lesson about going above and beyond in your research. Our first clinic had a great reputation in our area for being a leading hospital in women’s health. Unfortunately, their fertility center, in our opinion, did not live up to that hype. After switching clinics and seeing how high their expectations were, we regretted wasting 3 cycles with our first clinic. BUT, the regret didn’t last long as we now have the baby we were supposed to have all along. We became pregnant after the first round of IVF and the first embryo transfer!

Who supported you the most during your donor search/ pregnancy?

Since we didn’t know how long this process would be and where it would take us, we didn’t tell our families and friends that we had begun the journey to having a baby, until we were getting ready to start the IVF process. We were definitely each other’s biggest supports during this time. As far as supports at Xytex, we had a lot of communication with Lynda Cribbs and Nannette Vilano. Both ladies were extremely friendly, helpful, and supportive during the time when we were waiting for vials of our donor to be released, while we waited on results of carrier screening, and finally with purchase and shipping.

How did you hear about Xytex?

Once we decided that we wanted to begin our journey to starting a family, we researched sperm banks that performed genetic testing on their donors. Xytex was on the list of sperm banks given to us from our fertility clinic, but we had also heard of them from friends of ours who were searching for a sperm donor at the same time that we were.

Why did you choose Xytex? What did you like most? What did you like least?

When we began our donor search, we were looking at three different sperm banks. We ultimately chose Xytex because of the extensive genetic testing that they provide, the rigorous screening process for donors, as well as the large number of adult photos that are available. In addition, because my wife and I are both CMV negative we needed a CMV negative donor. This can often limit the choices drastically. However, Xytex had a decent amount of CMV negative donors that had other attributes we were looking for.

The only thing that was a disappointment for us was learning that the sperm buyback period with Xytex is significantly shorter than other sperm banks. We purchased 9 vials to be used for 2 pregnancies. We plan on having 2-3 years between our children and that would go past the 2-year buyback period that Xytex offered (at the time of our purchase) should we have any vials left over.

How did Xytex compare to other sperm banks?

We love that Xytex is open to helping LGBTQ couples create a family. Extensive genetic testing and screening process, free 2-year storage with the purchase of multiple vials, messages from donors, multiple photos at different age ranges–including adult photos, and cost was slightly less than other sperm banks.

What was most important to you when choosing a donor? What were you looking for?

-Genetic testing

-As much information as possible regarding the donor and his family’s medical/health history

-Education

-CMV negative

-Light eyes as both my wife and I have blue eyes.

-The written messages from the donors. We felt that these messages helped to give us a small glimpse into their personality and their reason for donating. Knowing that our donor’s reason for donation was to help others create a family was important to us.

What would you tell others looking for a donor? Any advice?

Take your time to find the donor that feels right for you, don’t rush it. Focus on what’s most important to you whether that be medical history, education, ethnicity, etc. This helped to make the process less overwhelming for us.

Why would you recommend Xytex?

Xytex made the process so easy! When we initially found our donor his vials were not yet available, and we were placed on a pending list. That alone was stressful because we knew we wanted to purchase a significant amount of vials and didn’t want to risk not having enough for two pregnancies. However, the staff members we worked with were wonderful, stayed in contact, and helped us feel more at ease! Also, the purchase and shipping process was seamless. We never worried about the tank not showing up on time to our fertility clinic.

Was our website/resources helpful?

Yes, the website was easy to navigate as was the donor search feature. We especially appreciated the resources that helped us to make decisions about carrier screening and whether or not to choose an identity disclosure donor.

After completing your purchase with Xytex, what happened from there?

After purchasing our vials in November 2018, we had Xytex store them until our first IUI in March of 2019. A simple phone call to Xytex was all it took to schedule the ship date for the sperm each time. In August of 2019, we became pregnant with our daughter!

Site Usage

Site Usage and Information Agreement

Effective 3^rd April 2017
IMPORTANT! THESE TERMS AND CONDITIONS AREA BINDING LEGAL AGREEMENT (this “Agreement”). PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS SITE.

AGREEMENT; ADDITIONAL TERMS; PRIVACY

This Agreement governs your use of www.xytex.com and any other website or page offered by Xytex and its subsidiaries and affiliates that links to this Agreement (collectively, including all associated content, communications, tools, features, functionality and services, the “Site”). This Agreement is by and between Xytex and its subsidiaries and affiliates (referred to herein as “Xytex”, “we”, “us”, or “our”) and you, on behalf of yourself, individually, or the organization on whose behalf organization you have registered (in either case, “you”). If you access the Site in your capacity as an employee, owner, or otherwise as an agent of an entity, you represent and warrant that you have the authority to bind such entity to the terms of this Agreement. You are deemed to have accepted this Agreement by accepting this Agreement and/or by using, viewing, transmitting, caching, storing and/or otherwise utilizing the Site, the services or functions offered in or by the Site and/or the contents of the Site in any way. For clarity, upon such access and use, you shall have agreed to each and all of the terms and conditions set forth below, and waive any right to claim ambiguity or error in this Agreement. If you do not agree to any portion of this Agreement, please discontinue use of the Site immediately. We reserve the right, at our sole and absolute discretion, to change, modify, add, or remove portions of this Agreement at any time without prior notice and, unless otherwise indicated, such changes will become effective immediately when an updated version of this Agreement is posted online; therefore, please check this Agreement periodically for changes. Your continued use of the Site following the posting of changes to this Agreement will mean you accept those changes. Please print and retain a copy of this Agreement, as it may be changed from time to time, for your records.

Certain products and services that we offer are governed by both this Agreement and additional terms specific to that product or service (“Additional Terms”). The terms of this Agreement and all applicable Additional Terms are collectively, the “Service Terms”. In the event of any conflict between this Agreement and the Additional Terms, such Additional Terms shall control with respect to your use of the product or service to which they apply only.

Along with this Agreement, please read our Privacy Policy before you submit any personal information to us. The Privacy Policy is hereby incorporated and made part of this Agreement.

USER ELIGIBILITY; YOUR ACCOUNT

The Site is available only to individuals and entities that can form legally binding contracts under applicable law. Without limiting the foregoing, the Site and the services offered by the Site are not available to minors under 18 or under the age of majority in their jurisdiction of residence, if older than 18. If you cannot form a legally binding contract due to age or otherwise, leave the Site and do not use the Site.

In consideration of your use of the Site, you represent, warrant and covenant to us that:

If you access the Site in your capacity as an employee, owner, or otherwise as an agent of another person or entity, you agree on behalf of yourself and such person or entity, jointly and severally, to be bound by the Service Terms.

You are at least 18 years old, or the age of majority in your jurisdiction of residence if older than 18, you are competent to form contracts, and you have the capacity and authority necessary to enter into, and perform your obligations under, the Service Terms (including on behalf of such person or entity, if applicable), and you are not a person barred from using the Site receiving products and services from us under the laws of the United States or any other applicable jurisdiction.

You will comply with all applicable laws, rules and regulations of all applicable jurisdictions in connection with your use of the Site and our products and services.

The Site and the materials located on or through the Site are provided by us for informational purposes only, with the understanding that we are not engaged in the rendering of health-related, medical, genetic, legal or other professional advice or services on account of providing such materials. The information contained in or through the Site is based upon sources believed to be accurate and reliable. However, we make no representation or warranty as to its accuracy, suitability, completeness or fitness for a particular purpose. You should consult your own professional advisors, including a physician or other health care professional, for health-related, medical or genetic advice, and attorney or other appropriate professional, concerning the terms and conditions of this Agreement and/or compliance with any legal requirement.

In order to access certain features of the Site, you may be required or allowed to register by providing certain profile and contact information. If you are a registered user, you are solely responsible for maintaining the confidentiality of your account information, including password, and you agree to accept responsibility for all activities that occur under or through your account. You agree (a) to immediately notify us of any unauthorized use of your account or password or any other breach of security, and (b) ensure that you exit or log out from your account at the end of each session. It is your sole responsibility to control access to and use of your account, and notify us should you desire to cancel your account. We will not be responsible or liable for any loss or damage arising from your failure to comply with this paragraph. We reserve the right to refuse accounts and terminate accounts at our sole discretion.

III. RESTRICTIONS ON USE

You acknowledge and agree that the features, tools, functionality, applications, materials, data and other information, content (including their selection and arrangement), services and software (including all text, logos, photographs, graphics, images, video, audio, illustrations, software, html, source and object code, algorithms, business logic, modules, programs, links and other materials), product names, logos, designs, service marks, trade marks, trade dress, titles, and certain words or phrases, in each case displayed on, transmitted through, or accessed or used on, within, or in connection with the Site (all of the foregoing, collectively, “Service Content”), are intellectual property protected by copyright, trademark or other proprietary rights of Xytex or its licensors, suppliers or other designees, which rights may or may not be registered in certain jurisdictions. You acknowledge and agree that Xytex and its licensors, suppliers or other designees reserves and retains, for itself and such third parties, as applicable, all intellectual property and other proprietary rights of any and all kinds in connection with the Site and Service Content, and you will not acquire any interest therein by using the Site or Service Content. You also agree to comply with any additional copyright notices, information, or restrictions contained in any Service Content available on or accessed through the Service.

No Service Content or material from any other Internet site owned, operated, licensed, or controlled by us may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without our prior written permission in each instance. For purposes of this Agreement, the use of any such material on any other Web, Internet, intranet, extranet or other site or computer environment is prohibited. You may not frame or utilize framing techniques to enclose any of our trademarks, logos, or other proprietary information (including images, text, page layout, or form) without our prior express written consent. You may not use any meta tags or any other hidden text utilizing our name, trademarks or other proprietary information without our prior express written consent.

Unless indicated otherwise, all names, logos, trademarks, service marks, trade dress and trade names on the Site are proprietary to Xytex. We consider our trademarks to be valuable assets, and take infringement of them seriously. Following is a list of the trademarks used on this site and owned by Xytex:

Xytex, Patriach, Super Sperm, PhotoFile, BabyFile, AudioFile, VideoFile, XTS, xyGene, xyConnects, and Ovations.

In the event you are permitted to download software from the Site, the software, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the “Software”) we hereby grant you a limited, revocable license, without the right to sublicense, to use the Software to the limited extent necessary to use the Site and our services. We do not transfer title to the Software to you. You own the medium on which the Software is recorded, but we (or third party licensors) retain full and complete title to the Software and all intellectual property rights therein. You may not redistribute, sell, de-compile, reverse engineer, disassemble, or otherwise reduce the Software to a human-readable form.

You may not: (a) engage in harvesting of email addresses or other personal information, unsolicited emailing, telephone calls or mailings, spoofing, flooding, overloading, spidering, “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other non-public information through the Site or attempt to gain unauthorized access to any portion of the Site or any other computer systems, networks or platforms linked to the Site. You agree that you will not use the Site in any manner that could damage, disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Site.

SUBMISSIONS

We are pleased to hear from our users and welcome your comments regarding the Site and the products and services offered in connection with the Site. Unfortunately, however, our long-standing company policy does not allow us to accept or consider creative ideas, suggestions, or materials other than those that we have specifically requested. We employ staff and consultants who may be working on the same or similar ideas. We hope you will understand that it is the intent of this policy to avoid the possibility of future misunderstandings when projects developed by our professional staff and/or consultants might seem to others to be similar to their own creative work. Please do not send us any unsolicited original creative materials of any kind. While we do value your feedback on your experience using the Site and the services and products offered in connection with the Site, we request that you be specific in your comments with respect to the same, and not submit any creative ideas, suggestions, or materials (unless specifically requested by us).

If, at our request, you send certain specific submissions or, despite our request, you send us creative suggestions, ideas, notes, drawings, concepts, or other information (collectively, the “Submissions”), the Submissions shall be deemed, and shall remain, our property. None of the Submissions shall be subject to any obligation of confidentiality on our part and we shall not be liable for any use or disclosure of any Submissions. Without limitation of the foregoing, we shall exclusively own all now known or hereafter existing rights to the Submissions of every kind and nature throughout the world and shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation or notice to, or approval by, the provider of the Submissions. Xytex does not waive any rights it may have to ideas previously known to it or developed by its employees and representatives, or obtained from sources other than you, which ideas are similar or related to Submissions.

FORUMS AND PUBLIC COMMUNICATION

“Forum” means a chat area, message board, or interactive function or feature offered as part of the Site. If you participate in a Forum within the Site, if applicable, you must not: (i) defame, abuse, harass or threaten others; (ii) make any bigoted, hateful or racially offensive statements; (iii) advocate illegal activity or discuss illegal activities with the intent to commit them; (iv) post or distribute any material that infringes, misappropriates and/or violates any right of a third party or any law; (v) post or distribute any vulgar, obscene, discourteous or indecent language or images; (vi) advertise or sell to, or solicit others; (vii) use the Forum for commercial purposes of any kind other than to facilitate a transaction on the Site; (viii) post or distribute any software or other materials which contain a virus or other harmful component; (ix) post material or make statements that do not generally pertain to the designated topic or theme of any Forum; or (x) submit any content that negatively reflects on the Site or the Xytex brand and its goodwill, or is otherwise objectionable as determined in Xytex’s sole discretion. Nor may you submit any content to a Forum that advertises or links to other sites for your commercial purposes, include viruses, corrupted data or other harmful, disruptive or destructive files, or may expose the Site or its users to any harm. You shall remain solely responsible for the content of your messages and shall indemnify and hold the Indemnified Parties (described in Part VIII below) harmless for the content of such messages. We reserve the right to remove or edit content from any Forum at any time and for any reason. While we may review content posted to or through a Forum, we are under no obligation to do so.

By uploading materials or posting any content to any Forum or otherwise submitting any materials to us, you (1) represent and warrant that such material or content is original to you, no other party has any rights in it, and it complies with this Agreement, and (2) automatically grant us a perpetual, royalty-free, irrevocable, non-exclusive, fully transferable, assignable, sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, publicly perform and display, create derivative works from and distribute such materials or incorporate such materials or content, including all data, images, creative works, sounds, text, and other things embodied in it, into any form, medium, or technology now known or later developed throughout the world. In addition, you waive any rights to compensation, attribution or any other “moral rights” in such materials and content.

When participating in a Forum, proceed with caution and never assume that people are who they say they are, know what they say they know, or are affiliated with whom they say they are affiliated with in any chat room, message board, or other user generated content area. In the event that you connect with us outside of the Site through any third party social media or sharing platform such as Facebook®, Twitter Inc., your use of such platform is subject to that platform’s separate terms and conditions.

CONTENT LINKED TO THE SITE

Links to other sites we think may be of interest to you are provided for your convenience. By providing these links, we are not endorsing, sponsoring or recommending such sites or the materials disseminated by or content or services provided by them (“Third Party Content”), and are not responsible for the Third Party Content. We reserve the right to disable links from any third party sites to the Site. We make no representations concerning Third Party Content that may be referenced on the Site, and are not responsible for the accuracy, relevancy, copyright compliance, legality or decency of Third-Party Content. Nor do we have any control over the privacy practices of any third party sites. We encourage you to review the privacy policy and terms of use for any site to which you link to from this Site.

VII. DISCLAIMERS

ELECTRONIC TRANSMISSIONS, INCLUDING THE INTERNET, ARE PUBLIC MEDIA, AND ANY USE OF SUCH MEDIA IS PUBLIC AND NOT PRIVATE. INFORMATION RELATED TO OR ARISING FROM SUCH USE IS PUBLIC, OR THE PROPERTY OF THOSE COLLECTING INFORMATION, AND NOT PERSONAL OR PRIVATE INFORMATION. YOU AGREE THAT YOU USE THE SITE AT YOUR OWN RISK. ANY AND ALL CONTENT, SERVICES AND MATERIALS ACCESSIBLE ON, OR THROUGH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY. WE DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS REGARDING THE ACCURACY, RELIABILITY, USEFULNESS OR COMPLETENESS OF OUR SERVICES, CONTENT OR MATERIALS ACCESSIBLE ON, OR THROUGH THE SITE OR ANY SITE LINKED TO IT. TO THE MAXIMUM EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, DESIGN, ACCURACY, CAPABILITY, SUFFICIENCY, SUITABILITY, CAPACITY, COMPLETENESS, AVAILABILITY, COMPATIBILITY OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WE DO NOT WARRANT THAT THE SITE OR THE SERVICES, CONTENT, MATERIALS OR FUNCTIONS ACCESSIBLE ON, OR THROUGH THE SITE WILL BE CONTINUOUSLY AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE, SERVICES, CONTENT, MATERIALS OR THE SERVERS THAT MAKE THE SITE OR SUCH SERVICES, CONTENT AND MATERIALS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR ARE ACCURATE OR COMPLETE. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, CONTENT, MATERIALS, FUNCTIONS OR PRODUCTS AVAILABLE THROUGH THE SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION AS A RESULT OF USING THE SITE AND OUR SERVICES. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

In the event we are held liable for any damages related to such matters, your sole and exclusive remedy will be limited to reimbursement for actual out-of-pocket expenses for services or products paid by you to us. You hereby waive any and all rights to bring any claim or action related to such matters in any forum beyond one (1) year after the first occurrence of the kind of act, event, condition or omission upon which the claim or action is based.

The Indemnified Parties (described in Part VIII below) are not responsible for telephone, electric, electronic, network, Internet, computer, hardware or software program malfunctions, failures, delays or difficulties, or late, lost, stolen, illegible, incomplete, garbled, misdirected, mutilated or postage due mail, e-mail, form postings, connections, messages or entries, or the security of any and all such matters.

Further, such Indemnified Parties are not responsible for incorrect or inaccurate entry information, whether caused by Internet users or by any of the equipment or programming associated with or utilized in the Site or by any technical or human error which may occur in the processing of any information related to the Site.

We may prohibit you from participating in or utilizing the Site if in our sole and absolute discretion you show a disregard for the terms of this Agreement or act with the intent to annoy, abuse, threaten, or harass any other user, or in any other disruptive manner. We also reserve the right to refuse service, terminate accounts, remove or edit content or cancel orders in our sole and absolute discretion.

We reserve the right to suspend access or discontinue the Site, in whole or in part, at any time, for any reason, including infection by computer virus, bugs, tampering, unauthorized intervention, fraud, technical failures, or any other causes beyond the reasonable control of Xytex, without prior notice.

You also agree that the Indemnified Parties (described in Part VIII below) are not responsible or liable in any way for injury, loss or damage to your computer or interception or use of credit card or payment information, related to or resulting from use of the Site or any sites, services or materials linked or related thereto or there from and also are not responsible or liable in any way for any injury, loss, claim or damage relating to or resulting from any part of the Site operating or not operating on computers or networks used by you or communicating with such computers or networks.

Although we intend that product descriptions contained in the Site be current and accurate, we make no warranty or representation that descriptions of products in the Site are accurate, complete, current, or reliable in any or all respects.

WE MAKE NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITE OR ANY WEB SITE LINKED TO THE SITE. WE WILL NOT BE LIABLE FOR THE PRIVACY OF THE INFORMATION, EMAIL ADDRESSES, REGISTRATION AND IDENTIFICATION INFORMATION, DISK SPACE, COMMUNICATIONS, CONFIDENTIAL OR TRADE-SECRET INFORMATION, OR ANY OTHER CONTENT TRANSMITTED OVER NETWORKS ACCESSED BY THE SITE, OR OTHERWISE CONNECTED WITH YOUR USE OF THE SITE.

NO ORAL ADVICE OR WRITTEN CORRESPONDENCE OR INFORMATION PROVIDED BY US OR ANY OF THE INDEMNIFIED PARTIES (DESCRIBED IN PART VIII BELOW) WILL CREATE A WARRANTY OF ANY KIND AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE. WE RESERVE THE RIGHT, IN OUR SOLE AND ABSOLUTE DISCRETION AND WITHOUT NOTICE, TO CORRECT ANY ERRORS OR OMISSIONS IN ANY PORTION OF THE SITE, OR TO DENY ACCESS TO THE SITE TO ANYONE AT ANY TIME. NEITHER WE NOR ANY OF THE INDEMNIFIED PARTIES, SHALL HAVE ANY LIABILITY ARISING FROM YOUR RELIANCE UPON THE INFORMATION PROVIDED ON THE SITE.

Search and Directory are free services which may be offered in connection with the Site. Because online content changes constantly, no search engine technology can possibly have all accessible data at any given time. Thus, we explicitly disclaim any responsibility for the content or availability of information contained in any search index or directory offered in connection with the Site.

The Site may contain technical inaccuracies or typographical errors or omissions. Xytex is not responsible for any typographical, photographic, or technical errors on our Site. Xytex reserves the right to make changes, corrections and/or improvements to the Site, and to the products and programs described in such information, at any time without notice.

VIII. INDEMNIFICATION

You are entirely responsible for maintaining the confidentiality of your password and account and for all activities that occur under your account. You hereby indemnify, defend and hold us (including our subsidiaries and affiliates), our suppliers and licensors, and each of such person’s or entities’ officers, directors, agents, contractors, subcontractors, guests, residents, visitors, licensees, invitees, permitees and employees (collectively, the “Indemnified Parties”) harmless from and against any and all allegations, demands, claims, liabilities, damages, fines, penalties or costs of whatsoever nature (including reasonable attorneys’ and experts fees and court costs) and whether by reason of death of or injury to any person or loss of or damage to any property or otherwise (“Claims”) arising out of or in any way connected with this Agreement, the services or products provided to you by us through the Site or any related act or failure to act by you and whether or not occasioned or contributed to by the negligence of Xytex or any agent or employee of the Indemnified Parties or any of them (except as and to the extent prohibited by applicable law) or Claims arising from your account, including, without limitation, any Claims related to infringement by you of the intellectual property rights of any person, including without limitation, copyright, patent, trade secret, trade mark, artist rights, droit moral, privacy, publicity or rights under other intellectual property laws. In the event that any Claim is made or any action or proceeding is brought against the Indemnified Parties, or any of them, arising out of or connected with this Agreement, any such Indemnified Party may, by reasonable notice to you, require you, at your expense, to resist such Claim or take over the defense of any such action or proceeding and employ counsel for such purpose, such counsel to be subject to the prior written approval of such Indemnified Party, which approval shall be deemed to have been given hereby in the case of counsel acting for your insurance underwriters engaged in such resistance or defense. You shall cooperate with us in the defense of any Claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.

LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL WE BE LIABLE FOR ANY LOST PROFITS, COST OF COVER, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, CONSEQUENTIAL OR PUNITIVE DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE SERVICES OR FUNCTIONS OF THE SITE OR ARISING OUT OF YOUR ACCESS TO, OR INABILITY TO ACCESS, THE SITE OR YOUR RELIANCE UPON, THE SITE OR THE SERVICES, CONTENT OR MATERIALS IN, OR FUNCTIONS OF, THE SITE, PROVISION OF, OR FAILURE TO PROVIDE SERVICES, OR INFORMATION, OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE). IN ADDITION, WE HAVE NO DUTY TO UPDATE THE SITE OR THE CONTENTS THEREOF. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SITE. IF YOU ARE DISSATISFIED WITH THE SITE OR ANY OF THE PRODUCTS, OR SERVICES IN CONNECTION THEREWITH OR ASSOCIATED THEREWITH, AS THE CASE MAY BE, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE USE OF THE SITE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH THE TERMS HEREOF.

RELEASE

BY UTILIZING THE SITE, ALL USERS ACKNOWLEDGE AND AGREE THAT THE INDEMNIFIED PARTIES ARE RELEASED, DISCHARGED AND HELD HARMLESS FROM AND ARE NOT RESPONSIBLE OR LIABLE FOR ANY LIABILITY WITH RESPECT TO ALL ASPECTS OF THE SITE (INCLUDING WITHOUT LIMITATION, ANY ILLNESS, LOSSES, LITIGATION, PERSONAL INJURY, DEATH, PROPERTY DAMAGE, AND CLAIMS BASED ON PUBLICITY RIGHTS, DEFAMATION, OR INVASION OF PRIVACY, REASONABLE ATTORNEYS’ FEES AND COURT COSTS) THAT MAY OCCUR FROM USE OF THE SITE OR THE ACCEPTANCE, POSSESSION, USE OR MISUSE OF INFORMATION, MATERIALS, SERVICES OR PRODUCTS RELATED THERETO OR ACQUIRED THEREFROM. WE RESERVE THE RIGHT AT ANY TIME AND WITHOUT LIABILITY TO RESTRICT OR REFUSE ACCESS TO THE SITE AND ITS SERVICES, CONTENT, MATERIALS AND FUNCTIONS TO ANYBODY. WE FURTHER RESERVE THE RIGHT TO SEEK ANY FORM OF RELIEF, INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES, RELATED TO FRAUDULENT OR ILLEGAL ACTIVITY CONNECTED WITH THE USE OF THE SITE.

JURISDICTIONAL ISSUES

We make no representation that the services or products offered in the Site are appropriate or available for use in any particular location. Those who choose to access the Site and our products and services do soon their own initiative and are responsible for compliance with local laws in their jurisdiction. If use of the Site and/or viewing or use of any material or content on the Site orif use of our products or services violates any applicable law in your jurisdiction, you are not authorized to view or use the Site, products and/or services and must discontinue use immediately. Your viewing and/or use of the Site constitutes your representation that you are unconditionally and without limitation permitted to view and use the Site and the Indemnified Parties may rely upon such representation. The Site is operated from the United States and it is possible that some Software from the Site may be subject to United States export controls. No Software from the Site may be downloaded or otherwise exported or re-exported to any person or to any location in violation of the export laws of the United States or any other jurisdiction. By downloading or using the Software, you represent and warrant that you are not located in a restricted location, or a restricted person or under the control of a restricted person.

XII. TERMINATION

This Agreement, as amended, remains effective during all periods of time during which you access the Site, our products or services. Your access to the Site may be terminated immediately without notice from us if in our sole and absolute discretion you fail to comply with any term or provision of this Agreement. Upon termination, you must cease use of the Site and destroy all materials obtained from such site and all copies thereof, whether made under the terms of this Agreement or otherwise. All rights and obligations which by their nature are intended to survive the termination of your use of the Site and/or termination of this Agreement in order to be fully operative, shall survive termination including, without limitation, the following provisions: Agreement; Additional Terms; Privacy (Part I), User Eligibility; Your Account (Part II); Restrictions on Use(Part III); Submissions (Part IV); Forums and Public Communications, second to last paragraph (Part V); Disclaimers (Part VII); Indemnification (Part VIII); Limitation of Liability (Part IX); Release (Part X); Termination (this Part XII); General Provisions (Part XIII); and Notice and Procedure for Making Claims of Copyright Infringement (Part XV).

XIII. GENERAL PROVISIONS

You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Site and your solicitation of offers to purchase and/or sell products and/or services. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, U.S.A., without giving effect to any principles of conflicts of law. You agree that (1) any action at law or in equity arising out of or relating to the terms of this Agreement, our products or services shall be resolved individually, without resort to any form of class action, and filed only in the state or federal courts located in Richmond County, Georgia, U.S.A., and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action, and (2) any and all claims, judgments and awards shall be limited to your actual-out-of-pocket costs incurred, but in no event attorneys’ fees, and under no circumstances will you be permitted to obtain awards for, and you hereby waive, all rights to claim any indirect, punitive, incidental, and consequential damages and any other damages, other than for actual out-of-pocket expenses, and any and all rights to have damages multiplied or otherwise increased. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between us relating to the subject matter of this Agreement and shall not be modified except as otherwise set forth in this Agreement. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition of this Agreement, whether or not similar, nor shall any waiver constitute a continuing waiver of any such term, provision or condition of this Agreement. No waiver shall be binding unless executed in writing by the party making the waiver. You agree that you will execute and deliver to us, in recordable form if necessary, such further documents, instruments or agreements, and shall take such further action, that may be necessary or appropriate to effectuate the purposes of this Agreement.

XIV. DIGITAL SIGNATURE PROVISIONS

You further agree that your clicking to accept terms and conditions on the Site constitutes a valid, legal and binding electronic signature and that you will have formed, executed, entered into, accepted the terms of, and otherwise acknowledged and agreed to the applicable terms.

NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

In accordance with the U.S. Digital Millennium Copyright Act, notifications of claimed copyright infringement should be sent to our Designated Agent. Notification must be submitted to the following Designated Agent:

Name of Agent Designated to Receive Notification of Claimed Infringement: Copyright Agent
Full Address of Designated Agent to Which Notification Should be Sent: 1100 Emmett Street, Augusta GA 30904 U.S.A.
Email Address of Designated Agent: info@xytex.com

To be effective, the notification must be a written communication that you can mail or email to us as indicated above that includes the following:

A full and complete identification of the copyrighted work you claim was infringed.
A clear identification of the material you claim is infringing the copyrighted work, the Site on which the material is posted and information that will allow us to locate that material on the Site, such as a link to the infringing material.
Your name, address, email and telephone number.
Include the following statement, signed by you: “I have a good faith belief that the material that is claimed as copyright infringement is not authorized by the copyright owner, its agent, or the law.”
Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and I am the copyright owner, or am authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.”
The notice must be signed by the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.