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    Terms of Use

    Welcome to the website of Bioness Inc. ("Bioness", "we", "our" or "us"). Bioness provides you access to http://www.bioness.com and other sites controlled by us ("Site") and the information and other materials available on and through the Site, subject to your compliance with the terms and conditions set forth below ("Terms of Use"). THESE TERMS OF USE INCLUDE LIMITATIONS ON YOUR RIGHTS AND REMEDIES (INCLUDING MANDATORY ARBITRATION) SO READ THEM CAREFULLY.

    In event of medical emergency call 911. This Site does not provide medical advice or services. The Materials (defined below) on this Site includes general information on our United States products, which are available by prescription only through your local healthcare professional. You should always consult your health care professionals in all respects regarding your health and what products and/or therapies may be appropriate for you. The Site and these Terms of Use are intended for viewing and acceptance by residents of the fifty (50) United States and the District of Columbia only and will be construed in accordance with United States law.

    Your access to and use of the Site (whether browsing, viewing or interacting with the Site or otherwise) is subject to the following terms and conditions and all applicable laws and additional terms and conditions may apply when you access certain services or materials, purchase products or services or follow a link from this Site, which terms and conditions will govern same. We may change these Terms of Use at any time without notice so check it each time you visit the Site. By accessing and browsing our Site, or posting a link to the Site on your or another site, you accept, without limitation or qualification, these terms and conditions. If you do not agree to them, please DO NOT USE THIS SITE. Your continued use of our Site evidences your agreement to be bound by each of the then posted Terms of Use and our Privacy Policy and constitutes a legally binding contract between you and Bioness.

    You agree that Bioness may provide to you required notices, agreements and other information concerning the Site to you electronically. Bioness will post the notices on the homepage of the Site or on the relevant web page of the applicable service or may, in its discretion, email notices to the last email address you have provided us (if any). If you want to withdraw your consent to receive notices electronically, you must discontinue your use of the Site.

    Information Collection

    Certain portions of our Site may request at your option that you provide information to us. If you opt to provide information to us, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Site's information collection form (such information being the "Information Data") and (b) maintain and promptly update the Information Data to keep it true, accurate, current and complete. If you provide any Information Data that is untrue, inaccurate, not current or incomplete, or Bioness has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Bioness has the right to refuse any and all current or future use of the Site (or any portion thereof). Our collection of Information Data is governed by our Privacy Policy.

    Bioness' Intellectual Property Rights and Limited License

    All text, graphics, multimedia content or other material that you see or read on the Site and all related technology and code (the "Materials") are owned or being used with permission by Bioness, and may not be used except as provided in these Terms of Use. You may download one copy of the Materials on any single computer, and may print a single copy of the consumer facing web pages in the form they appear (i.e., not the code) on screen, for your personal, noncommercial use, provided you keep intact any copyright, trademark and other proprietary and/or attribution notices on the Materials and do not modify the Materials in any way unless specifically otherwise authorized by us in writing. You will not acquire any ownership rights in any Materials and the limited license hereunder is revocable at our discretion. You may not modify, reuse, re-post, or use the Materials for public or commercial purposes, without Bioness' written permission. Any attempt by you to sublicense, transfer or assign the Material will be void and your license to use the Materials will automatically terminate.

    Notwithstanding anything herein to the contrary, you have no ownership rights in any of the Site's software or code, and your license to such is governed by this section and limited to use of the Site as authorized hereunder. You may not decompile, disassemble, reverse engineer, or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Materials by any means whatsoever; provided, however, that such restriction will be limited as required to comply with any applicable law. The Materials may include third party technology and content and any use thereof by you outside of the Site, or except as specifically authorized hereunder, may violate third party rights and you agree to defend, indemnify and hold Bioness harmless with respect thereto. You further agree that you will not, and will not attempt to, copy or distribute the Materials, in whole or in part, to any other party (including by "mirroring") or otherwise violate the single computer, non-commercial, non-transferable, non-exclusive, limited license, revocable at Bioness' discretion, granted hereunder unless specifically permitted by Bioness. You may not intercept, emulate or redirect the proprietary protocols used by Bioness in connection with the Site, regardless of method, including, without limitation, adding unauthorized components or using a packet sniffer.

    Submissions

    While we are looking forward to receiving your materials when we specifically ask for them or invite you to submit them, it is our policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested and then subject to any specific terms, conditions and requirements that may apply thereto. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly, you agree that any user content (including, without limitation, contents of emails sent to us) you do transmit to us electronically or otherwise ("User Content") will be treated as non-confidential and we may use such any way we want with no obligation to you and you hereby irrevocably grant Bioness a worldwide, perpetual, royalty-free, fully-paid, non-exclusive, restriction free license (with the right to grant unlimited sublicenses through multiple tiers of sublicensees) to distribute, sell, rent, lease, reproduce, copy, record, modify, add to, combine with other materials, remove, adapt, publicly perform, publicly display, freely assign, create derivative works from and otherwise use and exploit any of same, or any part thereof, in any medium now known or hereinafter known, in any language(s), and by any means or manners now or hereafter developed. You also agree that Bioness may disclose any of same, or any part thereof, to any third party for any reason, including, without limitation, if disclosure is required or is reasonably necessary to comply with the law or any legal process, or any law enforcement request, to enforce Bioness' rights, to analyze or respond to third party claims or generally protect Bioness and its users. Furthermore, Bioness is free to use any ideas, concepts, know-how or techniques contained in any User Content you submit to us for any purpose, at any time, and without any remuneration or obligation to you. Any modification of this submission policy and license must be in writing and signed by an authorized Bioness signatory. The rights granted by you hereunder may not be terminated, revoked or rescinded and are not subject to any reversion.

    Copyright and Trademarks

    The content of the Site includes copyrighted materials, trademarks and other proprietary information, which may include, without limitation, text, software, photos, video, audiovisual materials, graphics, music and sound. The entire contents of the Site are copyrighted under the United States copyright laws and/or similar laws of other jurisdictions. Without limitation, Bioness owns a copyright in the selection, coordination, arrangement and enhancement of such materials, as well as in the content original to Bioness. Third-party content providers own the copyright in content that is original to them. "Bioness", "Bioness Inc." , the "Bioness logo", as well as other marks that may appear on the Site, are the service and trademarks of Bioness. All other trademarks, service marks and logos used on this Site, with or without attribution, are the trademarks, service marks or logos of their respective owners. Without Bioness' written permission, you agree not to display or use, in any manner, any such marks and all goodwill associated with any use by you thereof will inure exclusively to Bioness or their respective owners. In addition, elements of the Site are protected by trade dress and other federal and state intellectual property laws and may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, without the express permission of Bioness.

    Links, Linking and Other Parties

    This Site may contain links to pages on other sites, and those sites may offer products, services or other resources. Because Bioness has no control over such sites and resources, you acknowledge and agree that Bioness has no responsibility for the accuracy of information provided by or availability via other sites. Links to external sites do not constitute an endorsement by Bioness of the sponsors of such sites or the content, products, advertising or other materials presented on those sites. Bioness does not author, edit or monitor these pages or links. You further acknowledge and agree that Bioness is not 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 such content, goods or services available on these other sites or resources.

    From time to time, you may communicate with, receive communications from, be re-directed to, interact with, or participate in or use the services or obtain goods and services of or from, third parties (e.g., advertisers and co-promotional partners or other Site users) as a result of your use of the Site. All such communication, interaction and participation is strictly and solely between you and such third party and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the third party or any goods or services you may purchase or obtain from any third party).

    Bioness hereby grants you a non-exclusive, limited license, revocable at Bioness' discretion, for you to link to Bioness' home page from any site you own or control that is not commercially competitive to Bioness and does not criticize or otherwise injure Bioness, so long as the site where the link resides, and all other locations to which such site links, comply with all applicable laws and do not in any way abuse, defame, stalk, threaten or violate the rights of privacy, publicity, intellectual property or other legal rights of others or, in any way, post, publish, distribute, disseminate or facilitate any inappropriate, infringing, defamatory, profane, indecent, obscene or illegal/unlawful information, topic, name or other material. Such a link is not an endorsement of such other site(s) by Bioness.

    Representations and Warranties

    You represent and warrant to Bioness that: (i) you have all requisite power and authority, to enter into these Terms of Use, and to execute, deliver and perform all of your obligations under these Terms of Use; (ii) you have provided, and will continue to provide, Information Data that is correct and current; (iii) you are the owner or authorized licensee—or the authorized agent of the owner or authorized licensee—of your User Content and have full legal, technical and editorial control of the same; (iv) you have the right to grant the licenses granted under these Terms of Use and the consent of no third party is required; (v) your performance under these Terms of Use and/or the rights granted herein do not and will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any contract or agreement, to which you are currently bound or will become bound in the future; (vi) your performance under these Terms of Use will comply with all applicable laws, rules and regulations (including, without limitation, export control, privacy and obscenity laws), domestic or foreign; and (vii) you will participate solely for the purposes intended and expressly permitted. You further represent and warrant that your User Content and any other information or material you submit and Bioness' use thereof pursuant to these Terms of Use, (a) do not and will not, directly or indirectly, violate, infringe or breach any duty toward or rights of any person or entity, including, without limitation, any copyright, trademark, service mark, trade secret, other intellectual property, publicity or privacy right or result in Bioness having any third party payment or other obligations as a result of its exercise of the rights granted by you hereunder; (b) are not fraudulent, misleading, tortious, defamatory, slanderous, libelous, abusive, violent, threatening, lewd, lascivious, filthy, obscene or otherwise objectionable; (c) do not harass others or otherwise interfere with another party's use of the Site; (d) do not promote illegal or harmful activities or substances; and (e) are not illegal, unlawful or contrary to the laws or regulations in any jurisdiction where, as applicable, your User Content are created, displayed or accessed.

    Disclaimer of Warranties

    YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
    YOUR USE OF THE SITE IS AT YOUR SOLE RISK. ANY CONTENT OR INFORMATION CONTAINED WITHIN THE SITE IS PROVIDED "AS IS" WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, BIONESS DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE AND ANY SITE-RELATED MATERIALS.

    IN ADDITION, BIONESS DOES NOT WARRANT THAT THE FUNCTIONS ON THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN OR ON THE SITE WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. UNDER NO CIRCUMSTANCES WILL BIONESS BE LIABLE IN ANY WAY FOR ANY MATERIAL, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY MATERIAL POSTED, EMAILED OR OTHERWISE TRANSMITTED VIA THE SITE. IF YOU FIND ANY MATERIAL ON THE SITE OBJECTIONABLE, DO NOT USE THE SITE.

    Termination, Discontinuance and Interruptions

    Bioness may, in its sole discretion, terminate your use of the Site for any reason, including, without limitation, if Bioness believes that you: (1) violated or acted inconsistently with the letter or spirit of these Terms of Use or otherwise acted inappropriately; (2) infringed the intellectual property right of a third party; (3) provided any information that Bioness is unable to verify or authenticate; or (4) transmitted unauthorized User Content. You agree that any termination of your access to the Site may be effected without prior notice to you.

    BIONESS MAINTAINS THE RIGHT TO DISCONTINUE OPERATION OF THE SITE, OR YOUR USE OF THE SITE, IN ANY CASE, IN WHOLE OR IN PART, AT ANY TIME, IN ITS DISCRETION, WITH NO OBLIGATION TO YOU, IN WHICH CASE YOUR ACCOUNT MAY BE TERMINATED, ANY POSTINGS OR OTHER CONTENT MAY BE DESTROYED.

    Bioness reserves the right to interrupt the services with or without prior notice for any reason or no reason. You agree that Bioness will not be liable for any interruption of the service, delay or failure to perform, and Bioness has the right at any time for any reason or no reason to change and/or eliminate any aspect(s) of the Site as it sees fit in its sole discretion.

    Limitation of Liability

    YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES WILL BIONESS, ITS PARENT, AFFILIATES OR SUBSIDIARIES, THEIR LICENSORS, DISTRIBUTORS, CONTRACTORS, DISCLOSED PARTIES (AS DEFINED IN THE PRIVACY POLICY) VENDORS OR OTHER PARTNERS, ANY OF THEIR SUCCESSORS, ASSIGNS OR LICENSEES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES (COLLECTIVELY "RELEASED PARTIES") BE RESPONSIBLE OR LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, THE USE OR THE INABILITY TO USE THE SITE, UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR LOSS OF OR DAMAGE TO, YOUR TRANSMISSIONS OR DATA, THE MATERIALS AVAILABLE ON THE SITE, STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR IN CONNECTION WITH THE SITE OR ANY OTHER MATTER RELATING TO THE SITE INFORMATION CONTAINED WITHIN THE SITE, EVEN IF ANY OF THESE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE AND/OR SITE-RELATED MATERIALS IS TO STOP USING THE SITE. YOU AGREE THAT THIS LIMITATION OF LIABILITY AND RELEASE IS MADE WITH THE KNOWING INTENT OF RELEASING ALL KNOWN AND UNKNOWN CLAIMS AND WITH THE INTENT OF WAIVING ALL RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542 OR OTHER LAWS REQUIRING SIMILAR WAIVERS OF UNKNOWN CLAIMS TO BE KNOWINGLY MADE.

    Indemnity

    You irrevocably agree to indemnify and hold Bioness and the Released Parties harmless from any claim or demand, including reasonable attorneys' fees, made by any third party, arising out of or in connection with, your User Content, your use of the Site, your connection to the Site, your violation of these Terms of Use or your violation of any rights of another party.

    Equipment

    You agree to be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Site, and you shall be responsible for all charges related thereto.

    Privacy and Monitoring

    Your activity on the Site is subject to our Privacy Policy; provided, however, we are not responsible for third party use of information you publicly post or make available on the Site.
    Bioness may monitor and record your communications and activities on the Site and you consent thereto and agree that such will be deemed User Content to which all of Bioness' rights hereunder apply.

    BIONESS MAY MONITOR YOUR COMPUTER AND ITS OPERATING SYSTEM, INCLUDING WITHOUT LIMITATION, RANDOM ACCESS MEMORY, HARD DRIVES, CENTRAL PROCESSING UNIT, IP ADDRESS, ETC., FOR THE PURPOSES OF IMPROVING THE SITE AND/OR SERVICE AND TO POLICE AND ENFORCE THE TERMS AND CONDITIONS OF THESE TERMS OF USE.

    A Special Note about Children, Children's Privacy and Our Compliance with the Children's Online Privacy Protection Act

    In compliance with the Children's Online Privacy Protection Act (COPPA), we are a general audience site and do not intend to collect any personally identifiable information ("PII") from children under thirteen (13) years of age, unless we believe such collection to be permitted by law. If you are the parent or guardian of a child under thirteen (13) and believe that he or she has disclosed PII to us, please contact us at privacy@bioness.com. Upon request, the parent or guardian of a child under thirteen (13) may review and request the deletion of such child's PII, as well as refuse to permit the further collection or use of such PII.

    Distribution Limitations and Territorial Restrictions

    The information provided on the Site 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 Bioness to any registration requirement within such jurisdiction or country. This Site is controlled and operated by Bioness from its offices within the State of California, U.S.A. and Bioness makes no representation that materials on the Site are appropriate or available for use in other locations. Those who choose to access this Site from other locations do so on their own initiative and risk and are responsible for compliance with local laws regarding online conduct and acceptable content, if and to the extent local laws are applicable. Use of or access to the Site shall not be construed as the purposeful availment of the benefits or privilege of doing business in any state other than the State of California by Bioness.

    Software related to or made available by this Site may be subject to United States export controls. Thus, no software from this Site may be downloaded, exported or re-exported (a) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other 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 this Site, 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. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods.

    Governing Law and Disputes

    The Terms of Use shall be governed by and construed in accordance with the internal laws of the United States and the State of California governing contracts entered into and to be fully performed in the state of California (i.e., without regard to conflict of laws provisions) regardless of your location. You acknowledge that the rights granted and obligations made hereunder to Bioness are of a unique and irreplaceable nature, the loss of which shall irreparably harm Bioness and which cannot be replaced by monetary damages alone so that Bioness shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for money damages (if any). Except with respect to the interpretation, protection or enforcement of Bioness' claimed intellectual property rights or right to seek injunctive relief (which will only be subject to arbitration if the parties mutually agree), you agree that any suit, action or proceeding arising out of or relating to these Terms of Use or the Site (including, without limitation, statutory, equitable or tort claims) shall be resolved solely by binding arbitration before a sole arbitrator under the rules and regulations of the American Arbitration Association ("AAA"). The arbitration shall be held in Los Angeles, California. The arbitrator shall apply the substantive laws of the State of California, shall issue a written decision, and shall have the power to award any legal remedies consistent with this Agreement except for punitive, exemplary or special damages. The parties expressly incorporate into these Terms of Use the terms of California Code of Civil Procedure Sections 1283 and 1283.05 pertaining to pre-hearing discovery. The parties will split the arbitrator's fee; provided, however, if applicable law requires Bioness to pay the arbitrator's fee in order for the arbitration provision to be enforceable, Bioness shall have the discretion to elect to pay such fees and proceed to arbitration. You agree that the provisions in this paragraph will survive any termination of your account(s). You irrevocably agree that any and all disputes, claims and causes of action you may have in connection with or related to the Site will be resolved individually, without resort to any form of class action.

    Severability

    If any provision of these Terms of Use or the Privacy Policy are found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the remainder, which will remain in force; the parties agree that the tribunal should endeavor to give the fullest possible effect to the parties' intentions as reflected in the provision and shall not affect the validity and enforceability of any remaining provisions.

    Waiver

    Any delay or failure on the part of Bioness to exercise or enforce any rights under these Terms of Use to which it may be entitled shall not, in any event, be construed as a waiver of the right and privilege to do so at any subsequent time.

    Statute of Limitations

    You agree that regardless of any statute or law to the contrary, any claim or cause of action, arising out of or related to, use of the Site or these Terms of Use must be filed in an applicable tribunal within one (1) year after such claim or cause of action arose or be forever barred.

    Assignment

    You may not delegate, assign or transfer your rights or obligations, Terms of Use or Privacy Policy, in whole or in part, by operation of law or otherwise, without the prior written consent of Bioness. Any attempted assignment in violation of this Section will be null and void and no force and effect. Bioness may assign this Agreement, in whole or in part, freely at any time without notice. Subject to the foregoing, these Terms of Use and Privacy Policy will bind and inure to the benefit of each party's permitted successors and assigns.

    Entire Agreement; Modification and Termination

    Bioness reserves the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time any materials, information or content available on the Site, including but not limited to your User Content, communications and account, and any functionality or features in or on the Site, in each case, in whole or in part, including the cessation of all activities associated with the Site, with or without notice. You agree that Bioness shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site or any part thereof.

    Bioness reserves the right to change or modify these Terms of Use at any time. These Terms of Use shall not be modified except in writing, as posted on this Site by Bioness. Any change or modification made by Bioness will be effective immediately upon posting on the Site and your continued use of the Site means that you have agreed to accept any changes or modifications made by Bioness. You should therefore periodically visit this page to review the most recent Terms of Use.

    Effective Date
    These Terms of Use were last changed and posted on our site on January 18, 2008.

    Bioness Inc.
    25103 Rye Canyon Loop
    Valencia, CA 91355
    (Attn: Webmaster)