PURSUANT TO SECTION 8 OF THIS AGREEMENT, RENTAL DEVICES MUST BE RETURNED IN OPERATOR’S ORIGINAL PACKAGING. TO FACILITATE THE RETURN OF YOUR RENTAL DEVICES, PLEASE RETAIN, PRESERVE, AND MAINTAIN OPERATOR’S ORIGINAL PACKAGING OF YOUR RENTAL DEVICES. IF YOU DO NOT HAVE THE ORIGINAL PACKAGING OF YOUR RENTAL DEVICES AT THE END OF YOUR SUBSCRIPTION, YOU MAY INCUR AN ADDITIONAL FEE FOR REPLACEMENT PACKAGING.

PLEASE BE AWARE THAT THIS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND OPERATOR. AMONG OTHER THINGS, SECTION 22 OF THIS AGREEMENT INCLUDES A JURY TRIAL WAIVER AND AN AGREEMENT TO ARBITRATE WHICH REQUIRES THAT ALL DISPUTES BETWEEN THE PARTIES SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 19 OF THIS AGREEMENT ALSO CONTAINS A CLASS ACTION WAIVER. PLEASE READ THESE SECTIONS CAREFULLY.

Fragile, Inc.

Membership Terms and Conditions

Last Updated June 4, 2025

These Whim Membership Terms and Conditions (the "Membership Terms") govern the enrollment in, access to, and use of the Whim Membership program offered by Fragile, Inc. (the "Operator"). These Membership Terms are incorporated by reference into the Subscription Terms and Conditions (the "Subscription Terms") and together form a binding agreement (the "Agreement") between the individual accepted into the Whim Membership program (the "Member") and Operator. Capitalized terms used but not defined herein shall have the meanings set forth in the Subscription Terms.

1. Whim Membership Overview

1.1. Whim Membership. A Whim Membership is a recurring monthly subscription pursuant to which Operator provides the Member with a fixed number of non-transferable digital credits ("Whims") that may be used solely to initiate and maintain subscriptions to eligible Rental Devices offered through Operator’s Whim catalog. The number of Whims allocated per billing cycle shall be determined by the membership tier selected by the Member (the "Membership Tier").

1.2. Whim Usage. A Member may use available Whims to initiate subscriptions to Rental Devices, each of which shall have a designated Whim cost per thirty (30) day period (each, a "Whim Subscription"). Operator may adjust the Whim cost of Rental Devices from time to time. A Member may maintain up to three (3) concurrent Whim Subscriptions at any given time (the "Device Slot Limit").

1.3. Accrual and Limits. Unused Whims shall roll over each billing cycle and remain available for future use. Whims are not subject to expiration, unless otherwise provided in future modifications to these Membership Terms. Whims may not be exchanged, resold, transferred, or redeemed for cash, and may not be used to satisfy any other obligation, including any Recurring Payment.

2. Enrollment and Tier Modifications

2.1. Membership Initiation. Enrollment in the Whim Membership program requires successful identity verification and Operator’s approval, which may include a soft credit inquiry as described in Section 1.1 of the Subscription Terms. Operator reserves the right to approve or deny enrollment in its sole discretion.

2.2. Tier Changes. A Member may request to upgrade or downgrade their Membership Tier at any time. Any such change shall take effect at the beginning of the next billing cycle, at which time the Member shall be charged the applicable Membership Fee and receive the corresponding Whim allocation. Whims accrued under a prior Membership Tier shall remain in the Member’s account and shall remain usable under the new tier.

3. Billing and Payment

3.1. Payment. Membership and Automatic Renewal. On the Commencement Date, you shall pay Operator the first Membership Fee. You shall subsequently pay Operator the Membership Fee on each monthly anniversary of the Commencement Date. All Membership Fees shall be made in advance of the month to which they apply.

When completing the Order Form, you shall designate a primary method of payment which Operator shall use to collect payment from you, and any non-primary payment methods as Operator requires. You agree to keep adequate funds available on such payment methods at all times. You authorize Operator to automatically collect authorized payments under this Agreement from you by means including: (i) charging your credit or debit cards; and (ii) direct debiting your bank accounts.

You agree to pay Operator the amount of such monthly Membership Fee that is specified in the Order Form in accordance with the terms of this Agreement. You hereby authorize Operator to charge your primary payment method the Membership Fee on its respective due date until your Membership is terminated, and you further agree to pay any charges so incurred. You also authorize Operator to charge any non-primary payment methods you provide to collect payment under this Agreement when Operator is unable to collect payment from the primary payment method you designate. Notwithstanding the foregoing, Operator is not obligated to collect payment from any method other than your primary payment method. You will promptly notify Operator if you choose to change your primary payment method, or if you are unable to meet your payment obligations. To use bank ACH debit as a payment method, you must also execute the authorization agreement attached to your Order Form.

You shall not provide any payment information to Operator which you do not have full legal authorization to use. You shall be responsible for any government fees or taxes in connection with your Membership, including those taxes and fees that may fluctuate from time to time. If Operator fails to collect any applicable government taxes or fees, Operator shall have one (1) year to charge you for any such amounts. If you are charged in excess of the amount permissible under this Agreement, you shall notify Operator in writing of any billing or payment discrepancies within two (2) years of the discrepant charge, otherwise you shall be considered to have accepted any such charges as being in accordance with this Agreement and no longer disputable to the extent permitted by law.

If you accrue an unpaid balance for sixty (60) calendar days or more, Operator may use all legal methods and remedies available to collect such unpaid balance, including selling such balance to third-party collection companies and civil litigation. You shall be liable for any and all costs incurred by Operator, Operator’s affiliates, or third parties involved in the collection of your unpaid balance, including reasonable attorneys’ fees, filing costs, and collection company fees.

3.2. Refunds. You are not entitled to any full or partial payment refunds, including in the event of Membership cancellation, suspension, or unused Whims.

4. Term, Cancellation, and Effect of Termination

4.1. Term. The Whim Membership shall continue on a month-to-month basis until terminated by the Member or by Operator in accordance with these Membership Terms or the Subscription Terms.

4.2. Cancellation by Member. A Member may initiate cancellation of the Whim Membership at any time by contacting Operator through the designated customer portal, telephone, SMS, or email. Cancellation shall become effective as of the next billing cycle, provided that all Rental Devices associated with any Whim Subscriptions have been returned or are verifiably in transit using Operator’s designated return method. Until all such Rental Devices are in transit, the Membership shall remain active and the Member shall continue to be charged the Membership Fee.

4.3. Termination by Operator. Operator may suspend or terminate a Whim Membership at any time, with or without cause, upon written notice to the Member. In such event, Operator shall not be obligated to refund any portion of the Membership Fee unless required by applicable law.

5. Additional Terms

5.1. Scope. The Subscription Terms shall apply to all Whim Subscriptions unless expressly modified by these Membership Terms. In the event of any conflict between these Membership Terms and the Subscription Terms, these Membership Terms shall govern solely with respect to the operation of the Whim Membership.

5.2. Modifications. Operator may modify these Membership Terms at any time in accordance with Section 21 of the Subscription Terms. Continued participation in the Whim Membership following the effective date of such modifications shall constitute acceptance of the revised terms.

5.3. Device Ownership and Use. All Rental Devices provided under a Whim Subscription remain the property of Operator and must be returned in accordance with Section 3 of the Subscription Terms. Nothing in these Membership Terms shall be construed as transferring title or granting ownership rights to the Member.

5.4. Contact. Questions regarding the Whim Membership may be directed to Operator at support@fragile.co.

Subscription Terms and Conditions

Last Updated June 4, 2025

When subscribing to a product or service with Fragile, Inc. (the “Operator”), you as the subscriber (“You” or “Your”) represent, warrant, and covenant that you understand, accept, and agree to be bound to these Subscription Terms and Conditions and to your order form or digital order summary page (each, an “Order Form,” and collectively with these Subscription Terms and Conditions, the “Agreement”). Operator and you are referred to collectively as the “Parties.”

Your Order Form, which is part of this Agreement, contains information about your subscription, including (i) the physical products, and the condition thereof (e.g., new, refurbished, etc.), that you will receive on a rental basis as part of this Agreement (the “Rental Devices”); (ii) any additional services you are entitled to receive (the “Added Services”); (iii) any additional consumable products you are entitled to receive (the “Added Consumables”); (iv) the monthly payment amount to be paid by you to Operator, which is subject to fluctuations in government fees or taxes (the “Recurring Payment”); (v) any one-time setup fees (the “Setup Fee”); (vi) the minimum commitment period, which could be as short as one month on a month-to-month basis (the “Commitment Period”); (vii) the applicable merchant or manufacturer, if any, with whom Operator has engaged to provide an offering of the Services; and (viii) if your subscription is for a fixed-term, the end date of the subscription (the “Subscription End Date”), or if no Subscription End Date is provided, the subscription will continue on a month-to-month basis until terminated. Items (i) through (iii) of this paragraph are referred to collectively as the “Services.”

6. Order and Acceptance

Operator has the right to review a subscription prior to the fulfillment of any Services. To the extent permitted by law, Operator may in its sole discretion reject any subscription. Neither you, nor any third party, shall have the right to appeal Operator’s determination, except as required under law. Operator may require payment for a subscription prior to acceptance.

6.1 Soft Credit Inquiry & Identity Verification

Effective exclusively for individuals who applied for a subscription or membership on or after May 30, 2025.

You authorize Operator to verify the information you provide in connection with this Agreement. This includes your express written instruction to obtain information from one or more consumer reporting agencies for purposes that may include fraud prevention, identity verification, eligibility determination, information verification, and the monitoring, servicing, or collection of your account. This verification may involve a soft credit inquiry, which will not impact your credit score and is visible only to you. It will not be seen by lenders or other third parties and will not appear as a hard inquiry or affect your creditworthiness. You further authorize any relevant third parties to disclose information requested by Operator, its contractors, or agents, unless otherwise prohibited by applicable law.

7. Term & Termination

7.1. Term. This Agreement shall be effective from the date you submit your Order Form (the “Commencement Date”). The duration of a subscription under this Agreement shall be calculated from the date the Rental Device is delivered to you (the “Rental Device Delivery Date”), and it shall continue until the Subscription End Date, or if no Subscription End Date is specified then it continues on a month-to-month basis until the date terminated.

7.2. Termination. Termination of a subscription may be initiated through one of the following:

(a) Automatic Termination. If a subscription is a fixed-term subscription for which an Subscription End Date is provided, then termination of the subscription shall automatically occur upon the Subscription End Date (or upon any modified Subscription End Date to which the Parties might agree).

(b) Operator Termination. Operator may, at any time, with or without reason, provide written notice to you that Operator is terminating a subscription, and the subscription shall terminate on the date specified by Operator, or immediately if no such date is specified.

(c) Your Termination. You may provide notice to Operator via your subscription customer portal, telephone at 415-707-0108, SMS at 866-535-4185 (please note your carrier’s charges may apply to telephone or SMS communications), or email at support@fragile.co, expressly stating that you are terminating a subscription and the subscription shall terminate on the date provided by you, or immediately if no such date is specified, so long as (i) the subscription has had full force and effect for the Commitment Period; and (ii) you are not past due on any payments due to Operator.

7.3 Effect of Termination; Survival. Upon termination of a subscription, Operator shall no longer be responsible for providing any Services related thereto, and you shall immediately return all Rental Devices in a manner consistent with Section 3 of this Agreement. This Agreement shall terminate upon the termination of all subscriptions, your return of all Rental Devices, and your full payment of all unpaid balances due to Operator. Sections 2.3, 3, 12-13, 16-21 of this Agreement will survive any termination of this Agreement. When termination is initiated, Operator shall no longer be responsible for providing any services to Subscriber. Subscriber shall immediately return any and all Rental Devices which Operator provided to Subscriber as prescribed under this Agreement.

8.  Rental Device Returns

BEFORE RETURNING A RENTAL DEVICE, PLEASE DELETE YOUR DATA FROM THE RENTAL DEVICE TO HELP PROTECT YOUR PRIVACY.

Rental Devices must be returned in a condition similar to that in which they were received (except normal wear and tear), and returned in Operator’s original packaging, with all associated parts, accessories, dongles, cables, instruction manuals, and other components. You shall take all reasonable efforts to package, secure, and return Rental Devices in a way designed to avoid damage, alteration, and theft. If you no longer have Operator’s original packaging or Operator’s original packaging is damaged after receipt by you, you must notify Operator. Operator may charge you a reasonable fee for replacement packaging and shipping charges incurred by Operator to provide replacement packaging to you.

If you are obligated to return a Rental Device, or Operator requests you to return a Rental Device, you shall return such Rental Device in accordance with Operator’s instructions, and take all necessary steps to complete such return within seven (7) calendar days of Operator’s provision of a return method (the “Return Deadline”). Operator shall be responsible for providing a method of return that is similar to that which you used to receive the Rental Device. If no such method is available, Operator shall be responsible for providing a reasonable alternative method of return. When Operator provides the method of return, the Rental Device will be deemed returned upon being duly placed by you into possession of Operator’s carrier for transport to Operator. If you are unable to complete your return using a method provided by Operator, you shall be responsible for, and bear all financial burden and associated liability with, procuring your own reasonable methods and means to promptly and securely return the Rental Device. When you do not use a method of return provided by Operator, the Rental Device will be deemed returned upon delivery to Operator by your carrier.

If (i) you fail to meet the Return Deadline (other than as a result of Operator’s negligence); (ii) you return a Rental Device to Operator which is damaged or altered, either in form or function, from how it was provided to you (except normal wear and tear); or (iii) Operator has a reasonable, good-faith belief that you no longer have possession of a Rental Device, or that a Rental Device has been damaged or altered, either in form or function, from how it was provided to you (except normal wear and tear); then Operator may use all legal methods and remedies available to recover such Rental Device or its cost, including repossession, private investigation, third-party collection companies, civil litigation, and referral to law enforcement. You authorize Operator to charge you the cost to repair or replace the Rental Device or components thereof, which will not exceed the full replacement cost for the Rental Device, and you shall be immediately and fully liable for such cost. You shall be liable for any and all costs incurred by Operator, Operator’s affiliates, or third parties involved in the recovery of the Rental Device or collection of related costs, including reasonable attorneys’ fees, filing costs, and investigation and collection company fees.

9. Rental Device Usage and Restrictions

You agree to use the Rental Devices and other Services in compliance with law. You agree to read and comply with all Rental Device instruction manuals. If you do not receive an instruction manual with your Rental Device, you will immediately contact Operator for assistance and prevent use of the Rental Device until you have received and read an instruction manual. Furthermore, you agree to read and abide by any terms of service, usage agreements, health and safety warnings, or other such agreements in connection with the Services provided to you.

YOU ACKNOWLEDGE THAT RENTAL DEVICES PROVIDED MAY BE IN REFURBISHED CONDITION, IF SO INDICATED ON THE ORDER FORM.

YOU SHALL INSPECT ANY RENTAL DEVICE PRIOR TO USE FOR ANY DEFECTS OR DAMAGE, AND IF ANY ARE IDENTIFIED, IMMEDIATELY REPORT THEM TO OPERATOR AND DISCONTINUE USE OF SUCH RENTAL DEVICE.

YOU WILL TAKE ALL NECESSARY PRECAUTIONS REGARDING THE RENTAL DEVICES AND OTHER SERVICES TO PROTECT ALL PERSONS AND PROPERTY FROM DEATH, INJURY, OR DAMAGE.

You agree to take due care of all Rental Devices received in connection with this Agreement, including reasonable measures to prevent damage, alteration, and theft. You will not damage or perform any alterations of Rental Devices, including to form or function. You will not, and will not attempt to, circumvent, block, disable, remove, modify or reverse engineer any activation, licensing, theft-prevention or similar technological mechanism on any Rental Device. You will use Rental Devices only in the manner which they are intended to be used. You will prevent any third party from using a Rental Device or the other Services.

You shall within forty-eight (48) hours report in writing to Operator: (i) any injuries or deaths incurred by you or others in connection with the Services; (ii) any damage or alterations, including to form or function, to Rental Devices; or (iii) any damage to other property caused in connection with the Services. If any of the foregoing occurred in connection with criminal conduct, including if a Rental Device was vandalized or stolen, you shall file a police report in the jurisdiction in which such conduct occurred within twenty-four (24) hours of such occurrence, or if not practicable within such time, then as soon as reasonably practicable thereafter.

10. Payment; Subscription and Automatic Renewal

For subscriptions initiated through a Whim Membership, payment for such subscription shall be made using Whims. You must maintain an active Whim Membership with a sufficient Whim balance in order to initiate or maintain a subscription to a Rental Device (a “Whim Subscription”). The number of Whims required for each Whim Subscription is specified in the Operator’s Whim catalog and may vary by device and over time. The Operator may modify the required Whim amount for any device at its discretion; however, such changes shall apply only to future billing cycles.

Whims are deducted from your available balance at the start of each thirty (30) day billing period for each active Whim Subscription. Whim Subscriptions automatically renew each billing cycle, provided that you have sufficient Whims in your account on the renewal date. If you do not have sufficient Whims at the time of renewal, the corresponding Whim Subscription may be suspended or canceled in accordance with the Whim Membership Terms.

Whims may only be used to pay for Whim Subscriptions. They may not be redeemed for cash, transferred to others, or applied toward other obligations, including any Setup Fees, taxes, charges for missing or damaged equipment, or any other monetary liabilities under this Agreement. You are solely responsible for monitoring your Whim balance and ensuring you have adequate Whims to support your active Whim Subscriptions. Whims roll over month to month unless otherwise stated in the Whim Membership Terms.

You may maintain no more than the number of concurrent Whim Subscriptions allowed under your Membership Tier (the “Device Slot Limit”). If you attempt to initiate a new Whim Subscription beyond your available Device Slot Limit or Whim balance, such request may be denied or deferred to the next billing cycle.

Nothing in this section limits Operator’s ability to suspend, terminate, or otherwise restrict access to a Rental Device in the event of noncompliance with other terms of this Agreement or the Whim Membership Terms.

11. Refunds

Whims used to initiate or renew a Whim Subscription are not refundable or reversible, including in the event of early termination, service interruption, or unused time within a billing cycle. Additional refund limitations, including with respect to Membership Fees and other cash payments, are set forth in the Whim Membership Terms and elsewhere in this Agreement.

12. Buy-Out and Rent-to-Own

YOUR SUBSCRIPTION IS NOT A RENT-TO-OWN PROGRAM OR AN INSTALLMENT SALE PROGRAM. YOU DO NOT HAVE AN OPTION TO BUY-OUT A RENTAL DEVICE OR OTHER SERVICE UNDER THIS AGREEMENT. AT NO POINT WILL YOU OWN A RENTAL DEVICE OR OTHER SERVICE PROVIDED UNDER THIS AGREEMENT, EVEN IF YOUR PAYMENTS EQUAL OR EXCEED THE RETAIL PRICE FOR A RENTAL DEVICE OR SERVICE.

If you seek to purchase your Rental Device and/or any other Services in connection with this Agreement, upon request Operator may, but is not required to, extend you an offer to purchase your Rental Device(s) and/or any additional Services which Operator chooses to offer to you. Operator may offer any such Rental Device(s) and/or Services on terms and conditions of its choosing, including based on Operator’s estimated value of such items and other commercial considerations. Upon your acceptance of such an offer by full payment of the applicable purchase price and payment for any other unpaid balances due to Operator, (i) you shall no longer be liable for any future Recurring Payments associated with the purchased Rental Device, (ii) you shall have the full rights, title, and responsibility to the Rental Device purchased, and (iii) Operator shall be immediately relieved of any and all of its obligations in connection with the sold Rental Device. Operator makes no representations, and provides no warranties, associated with Rental Devices purchased by you. You shall be solely responsible for procuring all necessary licenses and materials necessary for the continued use and operation of Rental Devices purchased from Operator, including software licenses and consumable materials.

13. Service Suspension

If you accrue any unpaid balance for more than fifteen (15) calendar days or are otherwise in breach of this Agreement, Operator may immediately suspend Services and take all actions necessary to effect such suspension, including : (i) using technological methods to reduce functionality or disable Rental Devices; and (ii) cease delivery of any current or future Added Services or Added Consumables. You shall not be entitled to any prorated refund or delivery of regularly scheduled Services that you did not receive as a result of suspension. Operator may charge you any reasonable costs associated with effectuating and reinstating a service suspension, including labor time incurred by Operator.

14. Insurance

To the extent your jurisdiction requires you to obtain and maintain insurance for your rental, possession, or use of a Rental Device, you shall obtain and maintain all such required insurance from the Rental Device Delivery Date through the date that you return the Rental Device in a manner consistent with Section 3 of this Agreement.

15. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, OPERATOR AND ITS SERVICE PROVIDERS SHALL NOT BE LIABLE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST REVENUES OR LOST PROFITS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSSES AND BASED ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH PRODUCTS OR SERVICES OR OTHERWISE UNDER THIS AGREEMENT. IF PERMITTED UNDER PREVAILING LAW, THE MAXIMUM AGGREGATE AMOUNT OF DIRECT DAMAGES THAT OPERATOR WILL PAY YOU FOR CLAIMS UNDER THESE TERMS IS THE TOTAL FEES PAID TO OPERATOR BY YOU IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

16. Ownership and Licenses

Operator’s and its service providers’ trademarks, service marks, logos, designs and trade dress may not be used in any form without the prior written consent from such party. All trademarks, services marks, logos, designs and trade dress not owned by Operator that appear in connection with these Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Operator. Operator reserves all rights in its intellectual property not expressly granted to you in this Agreement.

Operator grants you a limited term, non-exclusive, non-sublicensable, revocable, non-transferable license to access and use the Services, which includes use of Rental Devices. Upon the termination of this Agreement, such license shall be immediately revoked. Operator may also revoke this license if Operator determines that you have breached this Agreement.

Operator will process and use your information in accordance with Operator’s Privacy Policy, which is available at https://fragile.co/legal/privacy-policy.

The Rental Devices may include or provide access to third-party software, services, technology and other resources (“Third-Party Technology”) that are subject to additional terms and conditions, privacy policies or other agreements with third parties (“Third-Party Agreements”). It is your responsibility to read and comply with all such Third-Party Agreements. Except as expressly set forth herein, Operator will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third-Party Technology, whether caused by your failure to comply with any Third-Party Agreements or otherwise.

17. Representations

By entering into this Agreement, you represent and warrant that you (i) are at least eighteen (18) years of age; (ii) have the authority to enter into this Agreement; (iii) are not entering into this Agreement under any false pretenses or malicious intent; and (iv) have not provided any false or fictitious information to Operator or its service providers.

18. Limited Warranties

YOUR RENTAL DEVICE WILL MEET OR EXCEED THE DESCRIPTIONS AND SPECIFICATIONS DISPLAYED TO YOU ON THE ORDER FORM FROM OPERATOR FOR YOUR RENTAL DEVICE. OPERATOR IS NOT RESPONSIBLE FOR DESCRIPTIONS OR SPECIFICATIONS OF RENTAL DEVICES OR SERVICES FROM ANY OTHER PARTY. YOU ARE SOLELY RESPONSIBLE FOR REVIEWING YOUR ORDER FORM BEFORE YOU SUBMIT IT TO OPERATOR. YOUR SOLE REMEDY FOR A RENTAL DEVICE OR SERVICE BEING INACCURATELY DESCRIBED OR SPECIFIED IS TO RETURN IT IN A MANNER CONSISTENT WITH SECTION 3 OF THIS AGREEMENT WITHIN FIFTEEN (15) DAYS OF ITS DELIVERY TO YOU IN UNUSED CONDITION, OR IN MINIMALLY USED CONDITION TO THE EXTENT NECESSARY TO ASCERTAIN THE FOREGOING. OTHERWISE, THE SERVICES AND RENTAL DEVICES ARE PROVIDED “AS-IS,” AND OPERATOR AND ITS SERVICE PROVIDERS MAKE NO, AND TO THE EXTENT PERMITTED BY LAW HEREBY DISCLAIM ALL, EXPRESS OR IMPLIED WARRANTIES, INCLUDING OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REPRESENTATIONS, OR GUARANTIES REGARDING THE RENTAL DEVICES AND OTHER SERVICES. YOU ARE SOLELY RESPONSIBLE FOR EVALUATING AND SELECTING PRODUCTS AND DETERMINING WHETHER EACH PRODUCT IS FIT FOR A PARTICULAR PURPOSE AND SUITABLE FOR YOUR USE. PRODUCTS ARE NOT MANUFACTURED TO ANY INDIVIDUAL REQUIREMENTS OR SPECIFICATIONS. NO LICENSE UNDER ANY OF OPERATOR’S OR ANY SERVICE PROVIDER’S INTELLECTUAL PROPERTY RIGHTS IS GRANTED OR IMPLIED WITH ANY PRODUCT INFORMATION.

19. Your Responsibilities; Assumption of Risk; Release of Claims

Through your use of the Services and the Rental Devices, you agree that you will exercise due care and diligence in your possession, use and maintenance of the Rental Devices. Prior to your use of the Rental Devices, you agree that you shall carefully read and adhere to all warnings and instructions provided in any materials accompanying the Rental Devices, including any user manual that may accompany your Rental Device. You shall take all reasonable precautions to prevent damage, misuse, and mishandling of the Rental Devices while in your possession. You further agree to promptly notify the Operator if you become aware of or suspect any defects, malfunctions, or damages to the Rental Devices. In the event that the Rental Devices in your possession are damaged or defective, you shall promptly contact the Operator and follow the Operator’s instructions regarding your damaged or defective Rental Device. You agree that you shall not otherwise attempt to fix or have fixed any such Rental Device without the Operator’s prior written authorization.

YOU ACKNOWLEDGE THAT THE RENTAL DEVICES PROVIDED UNDER THIS AGREEMENT MAY BE REFURBISHED, USED OR NOT OTHERWISE IN NEW CONDITION AND ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”. YOU ASSUME ALL RISKS ASSOCIATED WITH THE POSSESSION, USE AND OPERATION OF SUCH RENTAL DEVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE THERE IS A RISK OF LOSSES, INJURIES, DEATH, OR DAMAGES ARISING FROM OR RELATED TO THE POSSESSION, USE, OR MISUSE OF THE RENTAL DEVICES OR OTHER SERVICES OR A BREACH OF THESE TERMS, AND YOU ASSUME ALL RISK OF SUCH LOSSES, INJURIES, DEATH, OR DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE OPERATOR FROM ANY AND ALL RESPONSIBILITY OR LIABILITY FOR SUCH LOSSES, INJURIES, DEATH, OR DAMAGES WHICH YOU OR OTHERS MAY EXPERIENCE ARISING FROM OR RELATED TO YOUR OR OTHER’S POSSESSION, USE, OR MISUSE OF THE RENTAL DEVICES OR OTHER SERVICES OR A BREACH OF THESE TERMS, INCLUDING WITHOUT LIMITATION WHERE SUCH LOSSES, INJURIES, DEATH, OR DAMAGES OCCUR AS A RESULT OF OR ARE RELATED TO THE CONDUCT OR ACTIONS OF THE MANUFACTURER OR MERCHANT OF THE RENTAL DEVICE; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE LIABILITY FOR THE OPERATOR’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR ANY OTHER LIABILITY THAT CANNOT BE LAWFULLY LIMITED OR EXCLUDED UNDER APPLICABLE LAW.

20. Indemnification

You shall indemnify, defend, and hold harmless Operator, its service providers, and their respective officers, directors, employees and agents (each, an “Indemnified Party”) from and against any and all damages, judgments, penalties, fines, losses, liabilities, costs and expenses (including reasonable attorneys’ fees), injuries or death to persons or damage to property, and payments for injuries or death to persons or damage to property, caused or claimed to be caused by you or by any Rental Devices or Services in connection with this Agreement, arising from any claim, action, or demand made or brought against any Indemnified Party by a third party arising from (i) your use of the Services or Rental Devices (including the payment of fines and other fees in Section 5 above), (ii) your breach or violation of any provision of this Agreement or law, or (iii) your violation of the rights of any third party; except in each case where arising from the sole gross negligence or willful misconduct of Operator. You will immediately notify Operator of any such claim, action, or demand. Operator reserves the right to assume the exclusive defense of any claim, action, or demand, and you agree not to settle any of the foregoing without Operator’s prior written consent. The obligations in this Section 16 shall survive any termination of this Agreement, remaining in full force and effect for five (5) years following the termination of this Agreement.

21. Governing Law

Except to the extent preempted by U.S. federal law, the law of the State of California shall govern this Agreement, the interpretation and enforcement of its terms, and any claim or cause of action (in law or equity), controversy, or dispute arising out of or related to it or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods (1980) and Uniform Computer Information Transactions Act (UCITA) are specifically excluded from application to this Agreement.

22. Jury Trial Waiver; Alternative Dispute Resolution

22.1. YOU AND OPERATOR HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.You and Operator instead agree that all disputes arising out of or related to the Agreement, and claims that are based on common law, contract, tort, federal, state or other statutory claims (collectively, “Disputes”) shall be resolved by arbitration shall be resolved by arbitration administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect.

22.2. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the Parties from the AAA’s roster of consumer dispute arbitrators. If the Parties are unable to agree upon an arbitrator within thirty-five (35) business days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

22.3. The arbitrator shall have exclusive authority to resolve any Dispute, including disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon the Parties. This means that, among other things, you and Operator agree that an arbitral award shall have no preclusive effect in any other proceeding involving other parties. Judgment on the arbitration award may be entered in any court having jurisdiction. In any award of damages, the arbitrator shall abide by Section 11 (Limitation of Liability) of this Agreement.

22.4. The Parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

23. Class Action Waiver

YOU AND OPERATOR AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

24. Miscellaneous

This Agreement (which, for clarity, includes the Order Form) constitutes the entire agreement between you and Operator relating to your access and use of the Services, your subscription, and the Rental Devices, and supersedes any prior agreements between you and Operator with respect to the Services, your subscription, or the Rental Devices. Please note that you also may be subject to additional terms and conditions of third parties when you use the Services, Rental Devices, third-party content, or third-party software. Operator may assign this Agreement or any of Operator’s rights or obligations under this Agreement to third parties. Operator may also engage third parties to perform any of its obligations under this Agreement. You may not assign this Agreement or any of your rights or obligations under this Agreement without Operator’s prior written consent. Any attempted assignment by you without Operator’s prior written consent is and will be void. A failure to exercise or enforce any right or provision that Operator or any of its service providers is entitled to under this Agreement shall not constitute a waiver of such right or provision. All rights and remedies of Operator and its service providers shall be cumulative. If any provision under this Agreement shall be deemed invalid, void, or for any reason unenforceable, that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions. As used in this Agreement, all references to “include,” “includes,” or “including” shall be deemed to be followed by the words “without limitation.”

25. Modification to This Agreement

Operator may modify this Agreement at any time upon notice, which may include email notice, to you, except that Operator will not modify the Recurring Payment during the Commitment Period (subject to fluctuations in government fees or taxes). Modifications will be effective no less than thirty (30) days after such notice, unless sooner required by law. During the Commitment Period, following Operator’s notice of a modification unrelated to fluctuations in government fees or taxes, you may provide a written objection if such modification is not yet effective. Upon such objection, you shall not be bound to the modification, and the previously effective provisions of the Agreement shall remain in full force and effect unless terminated by Operator or you.