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Welcome to the myoscience, Inc. ("myoscience") web site. Myoscience maintains this Web Site to provide information to and communicate better with physicians, patients, investors, and others who may be interested in learning more about myoscience and the products and services it offers. You may use this Web Site, provided you comply with these terms and conditions.
Please take a few minutes to carefully review these terms and conditions. By accessing and using this Web Site you agree to follow and be bound by these terms and conditions. If you do not agree to follow and be bound by these terms and conditions, you may not access, use or download materials from this Web Site.
Myoscience reserves the right to update or modify these terms and conditions at any time without prior notice. Your use of this Web Site following any such change constitutes your agreement to follow and be bound by the terms and conditions as changed. For this reason, we encourage you to review these terms and conditions every time you use this Web Site. These terms and conditions were last revised on August 25, 2011.
Everything you see and hear on this Web Site (the "Content"), including, for example, all of the text, directories, photographs, illustrations, graphics, audio clips, video clips, and audio-video clips, is copyrighted under United States law and applicable international copyright laws and treaty provisions. The copyrights in the Content are owned by myoscience or by one of its affiliates, or by third parties who have licensed their materials to myoscience. The entire Content of this Web Site is copyrighted as a collective work under United States law and applicable international copyright laws and treaties. Myoscience owns the copyright in the selection, coordination, arrangement and enhancement of the Content. You may download, store, print, and copy selected portions of the Content of this Web Site, provided you:
Only use the Content you download for your personal, noncommercial use or to further your business dealings with myoscience.
Do not publish or post any part of the Content on any other Internet site without obtaining the prior written consent of myoscience.
Do not publish or broadcast any part of the Content in or on any other media without obtaining the prior written consent of myoscience.
Do not modify or alter the Content in any way or delete or modify any copyright or trademark notices or notices of confidentiality. No right, title or interest in the downloaded Content is transferred to you when you download Content from this Web Site. Myoscience reserves all intellectual property rights in any Content you download from this Web Site. Except as expressly stated above, you may not copy, download, print, publish, display, perform, distribute, transmit, transfer, translate, modify, add to, update, compile, abridge or in any other way transform or adapt all or any part of the Content without first obtaining written permission from myoscience.
All of the trademarks, service marks and logos displayed on this Web Site (the "Trademark(s)") are registered and unregistered trademarks of myoscience, one of its affiliates, or third parties who have licensed their Trademarks to myoscience or one of its affiliates. Except as expressly stated in these terms and conditions, you may not reproduce, display or otherwise use any Trademark without first obtaining myoscience's written permission.
This site may contain hyperlinks to web sites that are not operated by myoscience. These hyperlinks are provided for your reference and convenience only, and do not imply any endorsement of the material or services provided on these third-party web sites or any association with their operators. Myoscience does not review or control these web sites and is not responsible for their content. Myoscience expressly disclaims any responsibility for the content of any third party web sites linked to our Web Site or the products or services of such third party. These third-party web sites (and the web sites to which they link) may contain information that is inaccurate, incomplete, or outdated. Myoscience does not make any representations regarding the content or accuracy of materials on such non-myoscience web sites or the products or services of any third party operating such web sites. You access and use these web sites (and the web sites to which they link) solely at your own risk.
Because different countries around the world have different laws and regulatory requirements, some medical devices and treatments are available in some countries and not in others. This Web Site contains references or cross references to myoscience products, programs and services that may not available or announced in your country. These references do not imply that myoscience intends to announce such products, programs or services in your country. Consult your local myoscience sales representative or contact myoscience if you have questions about which products, programs and services may be available to you.
The information provided on this Web Site is not intended nor recommended as a substitute for professional medical advice. Always seek the advice of your physician or other qualified health provider regarding any medical condition or treatment. Nothing contained on this site is intended to be for medical diagnosis or treatment.
THIS WEB SITE IS PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO APPLICABLE LAW, MYOSCIENCE AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING, MYOSCIENCE DOES NOT REPRESENT OR WARRANT THAT THIS WEB SITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. MYOSCIENCE DOES NOT REPRESENT OR WARRANT THAT THE CONTENT OF THIS SITE IS FREE OF VIRUSES, WORMS OR OTHER CODE THAT MAY MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. IF YOUR USE OF THE WEB SITE OR THE MATERIALS RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, MYOSCIENCE IS NOT RESPONSIBLE FOR THOSE COSTS. USERS ARE RESPONSIBLE FOR PROTECTING THEMSELVES BY INSTALLING, UPDATING AND RUNNING ANTI-VIRUS PROGRAMS. INFORMATION PUBLISHED ON THIS WEB SITE MAY BE INCOMPLETE OR OUTDATED AND MAY CONTAIN INACCURACIES OR TYPOGRAPHICAL ERRORS. MYOSCIENCE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY, CURRENCY, RELIABILITY OR COMPLETENESS OF, OR THE RESULTS OF THE USE OF, OR OTHERWISE RESPECTING THIS WEB SITE OR ANY INFORMATION, MATERIALS, SERVICES, SOFTWARE, TEXT, GRAPHICS AND LINKS CONTAINED ON OR ACCESSED THROUGH THIS WEB SITE. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU. MYOSCIENCE MAKES NO CLAIMS THAT THE MATERIALS ARE APPROPRIATE OR MAY BE DOWNLOADED OUTSIDE OF THE UNITED STATES. ACCESS TO THE MATERIALS MAY NOT BE LEGAL BY CERTAIN PERSONS OR IN CERTAIN COUNTRIES. IF YOU ACCESS THE WEB SITE FROM OUTSIDE OF THE UNITED STATES, YOU DO SO AT YOUR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH THE LAWS OF YOUR JURISDICTION.
YOUR USE OF THIS WEB SITE IS AT YOUR SOLE RISK. UNDER NO CIRCUMSTANCES, SHALL MYOSCIENCE, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THIS WEB SITE OR YOUR RELIANCE ON ANY INFORMATION PROVIDED ON THIS WEB SITE. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND WHATSOEVER, WHETHER DIRECT OR INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, REVENUE OR PROFITS. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS AND EVEN IF AN AUTHORIZED REPRESENTATIVE OF MYOSCIENCE OR ITS AFFILIATES HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID OR UNEN FORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF MYOSCIENCE AND/OR ITS AFFILIATES UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED ($100.00) DOLLARS.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS MYOSCIENCE, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM AND AGAINST ANY CLAIMS, ACTIONS OR DEMANDS, INCLUDING WITHOUT LIMITATION REASONABLE LEGAL AND ACCOUNTING FEES, RESULTING FROM YOUR USE OF THE MATERIALS (INCLUDING SOFTWARE) OR YOUR BREACH OF THE TERMS OF THIS AGREEMENT. MYOSCIENCE SHALL PROVIDE NOTICE TO YOU PROMPTLY OF ANY SUCH CLAIM, SUIT OR PROCEEDING OF WHICH IT RECEIVES NOTICE AND SHALL ASSIST YOU, AT YOUR EXPENSE, IN DEFENDING ANY SUCH CLAIM, SUIT OR PROCEEDING.
This Web Site is controlled and operated by myoscience from its offices within the State of California in the United States. Any claim relating to these Terms and Conditions and/or the use of this Web Site shall be governed by the laws of California. By using this Web Site, you consent to personal jurisdiction in the federal and state courts of California for any action arising out of or relating to this Web Site, these Terms and Conditions or your use of this Web Site. The federal and state courts of California shall have exclusive jurisdiction over all such actions.
If any provision of these Terms and Conditions is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms and Conditions shall remain in full force and effect. Any provision of these Terms and Conditions held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
This Agreement constitutes the entire agreement between you and myoscience with respect to your access to and/or use of this Web Site and shall not be modified except by myoscience as provided herein or through a written document signed by both parties.
The only personal data myoscience currently collects through this Web Site is the information you send to us when you contact myoscience with your questions and comments through the Contact Us page on this Web Site. When you send us an e-mail through that page, we ask you for your name and other contact information, including, for example, your company's name, your e-mail address, and your mailing address or the mailing address of your company.
Myoscience does not sell, trade or rent your personal information to others. Myoscience uses the information you provide to respond to your e-mail, answer your question or resolve your problem. Myoscience and our affiliates also use this information to help us improve the content and functionality of our web sites, to better understand our customers and markets, and to improve our products and services. Myoscience and our affiliates may use this information to contact you in the future to tell you about products or services we believe will be of interest to you. If we do so, each communication we send you will contain instructions permitting you to "opt-out" of receiving future communications.
In addition to the information you provide when you use our Web Site, myoscience uses technology to collect anonymous information about the use of our Web Site. For example, we use technology to track how many visitors access our Web Site, the date and time of their visit, the length of their stay, and which pages they view. We also use technology to determine which Web browsers our visitors use and the address from which they accessed our site (for example, if they connected to myoscience.com by clicking on one of our banner ads). This technology does not identify you personally. It simply enables us to compile statistics about our visitors and their use of our Web Site. Myoscience and our affiliates use this anonymous data and share it with third parties to improve the content and functionality of our web sites, to better understand our customers and markets, and to improve our products and services.
In order to collect the anonymous data described in the preceding paragraph, myoscience may use temporary "cookies" that collect the first level domain name of the user (for example, if your e-mail address is "email@example.com," the cookie collects the "xyz.com" portion of your e-mail address) and the date and time you accessed this Web Site. Cookies by themselves cannot be used to discover the identity of the user. A cookie is a small piece of information which is sent to your browser and stored on your computer's hard drive. Cookies keep track of non-personal information such as the URL that you came from and go to next, your navigation through the website (for example, the advertisements that you click on), the browser and operating system that you use, and your IP address. Cookies do not damage your computer. You can set your browser to notify you when you receive a cookie. This enables you to decide if you want to accept it or not. At the present time, myoscience only uses temporary or "session" cookies. These cookies expire when your browser window is closed.
Myoscience does not knowingly collect personal data from children under the age of thirteen. If you are under thirteen, please do not give us any personal data. If you have reason to believe that a child under the age of thirteen has provided personal data to myoscience, please contact us, and we will endeavor to delete that information from our databases.
These terms & conditions are hereby incorporated into any transaction involving the sale, lease, rental, loan or licensing of Products, as defined below, by myoscience, Inc.
1.Definitions. "Authorized User" will mean a Licensed Physician or professional with substantial medical education and training who both: (a) possesses the training and qualifications required by applicable law to use the Products in accordance with this End User Agreement (the "Agreement") and (b) will use the device under company supervision until all training required by myoscience, Inc. ("Company") for the safe and proper use of the Products has been successfully completed within 90 days from Agreement execution and prior to reorder of Smart Tips. "Country of Use" will mean the country to which a Product was originally shipped by Company to the customer ("Customer"). "Licensed Physician" will mean a medical doctor in good standing that is licensed to practice medicine in the relevant jurisdiction at the time of the sale of the Products. "Products" will mean all products, supplies, documentation, training and other items purchased from Company by Customer and may be new or refurbished. Company is under no obligation to continue the manufacture of any Product.
2. Purchase of Products. Customer agrees to purchase and use Products in accordance with this Agreement. The purchase price for Products will be as communicated by Company from time to time and is subject to change at Company's sole discretion. Prices are exclusive of all taxes (including any excise, sales, use, value added, withholding and other taxes), import/export fees, customs duties and tariffs ("Taxes"), all of which will be Customer's responsibility. If Company is required to pay any Taxes, Customer will reimburse Company for all amounts paid. All payments will be made by means acceptable to Company in accordance with Company's then-current policies in.
3. Purchase Orders. This Agreement will exclusively govern all of Customer's orders for Products and will supersede any terms and conditions contained in Customer's purchase orders and other business forms, regardless of any failure of Company to object thereto. Customer will order all Products through a means acceptable to Company. No order will be binding on Company until accepted by Company in writing or Company ships the applicable Products.
4. Use of Products. (a) The Products will be used only by an Authorized User in the Country of Use. Any Authorized User who is not a Licensed Physician will use the Products only under the active supervision of a Licensed Physician. Allowing the use of any Products by any person other than an Authorized User who is, or is acting under the active supervision of a Licensed Physician may violate applicable law and may endanger patient safety. For purposes hereof, "active supervision" means having a Licensed Physician available during the performance of any procedure using the Products. (b) Customer will use, and will ensure that its employees and agents use, the Products only for their intended and approved uses and in accordance with this Agreement and all Company documentation and any updates thereto. (c) Customer will not sell, donate or otherwise transfer any Product to any third party, or export or re-export any Product or any Software contained therein, without Company's prior written consent and without all necessary United States and foreign government consents and licenses. (d) Customer will not tamper with, modify or assist any third party in modifying any Product. Company reserves the right not to sell any Products necessary for the continued use of any Products previously purchased if Company believes the Products are being used in violation of this Agreement.
5. Adverse Events. Customer will promptly (and in any event within two days) report to Company's Customer Service Department any malfunction of a Product or any injury arising out of use of a Product and provide all related information requested by Company.
6. Proprietary Rights. Company retains all proprietary rights, including all patents, copyrights and trade secrets, in and to all designs, engineering details and other technology and information pertaining to the Products. In furtherance of the foregoing, Company retains sole and exclusive ownership of all software included in or provided in connection with the Products (the "Software"), and Company hereby grants to Customer a non-exclusive, non-transferable license to use the Software as incorporated into, and solely for use in connection with, the Products in accordance with this Agreement. For clarity, the Software is licensed, and not sold, to Customer; any references to "sale" or "purchase" in this Agreement with respect to the Software mean the sale or purchase of such license. Customer will not (a) disassemble, decompile or otherwise reverse engineer the Software or any Product or (b) modify, copy, sell, rent, transfer, reproduce or distribute the Software. Upon at least 10 days notice, Customer will grant Company access to Products to install any new versions, updates or upgrades of the Software.
7. Trademarks and Advertising. Customer will comply with Company's trademark and advertising guidelines made available with Company's practice marketing kit and upon request. All goodwill derived from the use of Company trademarks will inure solely to the benefit of Company.
8. Delivery. Products will be shipped to Customer Ex Works (Incoterms 2010) Company's shipping point, at which time title and risk of loss will pass to Customer. Customer will be responsible for all shipping, clearance and forwarding costs. Company will not be liable for any delay in delivery.
9. Training. Customer will ensure that Customer and its employees and agents are fully trained with respect to the Products, and that Customer and its employees and agents comply with all applicable laws and regulations, including those of medical agencies and certification boards. Customer will ensure that its Authorized Users attend all training offered by or on behalf of Company that relates to safe use of the Products.
10. Warranty. Company warrants to Customer that the Products will be free from significant manufacturing defects in materials and workmanship during the Company's standard manufacturer's warranty period stated on the Sales/Lease Order Request. The sole and exclusive remedy of Customer for Company's breach of the foregoing warranty will be, at Company's option, the repair or replacement of a confirmed defective unit and such replacement may be with new or refurbished units. Except with respect to confirmed defective Products in breach of the foregoing warranty, Company conveys no right of return to Customer and no returns will be accepted. The foregoing warranty is contingent upon proper use of the Products by trained and authorized personnel in their intended and approved uses, and the foregoing warranty will not apply to items that were modified or otherwise altered or changed without Company's prior written approval, that were repaired by persons not authorized by Company, that were subjected to unusual physical, electrical or environmental stress or that were damaged during shipment to Customer. Except for the foregoing warranty, Company makes no warranty, express, implied or statutory, as to any matter whatsoever, including any warranty of merchantability, fitness for a particular purpose or non-infringement. The foregoing warranty applies only in favor of Customer who is the end user and original purchaser of the Products and is not transferable. Return of defective Products must be made according to Company's then-current return goods authorization procedures. Company will not accept any returns of sterile Products if the original packaging has been tampered with or opened, without Company's prior approval.
11. Limitation of Liability. Company's total aggregate liability arising out of this Agreement will be limited to the amount of the purchase price for the Product in question. Under no circumstances will Company be liable for any incidental, consequential, indirect, exemplary, punitive or special damages, including damages for lost revenue, profits or business opportunities, the cost of procurement of substitute goods or services or other financial losses. These limitations apply even if Company has been advised of the possibility of such damages, notwithstanding any failure of essential purpose of any limited remedy and regardless of the theory of liability.
12. Term and Termination. This Agreement will commence on the date of the last signature below and will continue in force until Company gives notice of termination. Sections 4–7, 11, and 13–15 will survive any termination, as well as all payment obligations incurred prior to termination.
13. Dispute Resolution. Any claim or dispute arising out of or relating to a Product or this Agreement will be resolved by binding arbitration conducted in the English language by a single arbitrator in San Francisco, California in accordance with the International Arbitration Rules of the American Arbitration Association. Judgment upon the arbitration award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Pending final determination of a claim through arbitration, a party may seek interim or provisional relief from a court of competent jurisdiction as necessary to protect the rights or property of such party.
14. Indemnity. Each party will indemnify the other party against all liabilities, claims and expenses (including reasonable attorneys' fees and other litigation expenses) incurred by that party against third parties arising from any breach or alleged breach of this Agreement by the respective party.
15. Miscellaneous. This Agreement sets forth the entire agreement of the parties regarding its subject matter, and supersedes all prior agreements and understandings relating to such subject matter. This Agreement will be governed by the laws of the State of California, U.S.A., without reference to principles of conflicts of law of any jurisdiction. This Agreement may not be assigned by Customer, by operation of law or otherwise, without Company's prior written consent. Company has the right to assign this Agreement without notice or consent. Any attempted assignment in violation of the foregoing will be null and void. No amendment of this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by both parties. If any provision of this Agreement is found to be invalid or unenforceable, the remainder of this Agreement will remain in full force and effect and be interpreted so as best to reasonably effect the intent of the parties.