Terms of Use

Welcome to Gynesonics, Inc. (“Gynesonics,” the “Company,” “our,” “us,” or “we”). PLEASE READ THESE TERMS OF USE CAREFULLY. These terms of use describe the rules for users (“you” or “your”) of Gynesonics.com and Sonatatreatment.com (collectively, the “Sites”). The Sites are designed to provide you with a general overview about Gynesonics and its products and services. Your access to, browsing of or use of the Sites is subject to the following terms of use (the “Terms of Use”) and our privacy policy (the “Privacy Policy”). The Privacy Policy can be accessed on our homepage at www.gynesonics.com. By accessing, browsing or using the Sites, you accept and acknowledge your assent to, without limitation or qualification, the Terms of Use and the Privacy Policy. If you do not agree to the Terms of Use and the Privacy Policy, then please do not access, browse or use the Sites in any manner.

We may change, add or remove portions of the Terms of Use at any time, which shall become effective immediately upon posting. It is your responsibility to review the Terms of Use prior to each use of the Sites and by continuing to use the Sites, you agree to any and all changes. YOUR CONTINUED USE OF THE SITES NOW, OR FOLLOWING THE POSTING OF NOTICE OF ANY CHANGES IN THE TERMS OF USE, WILL INDICATE ACCEPTANCE BY YOU OF SUCH RULES, CHANGES, OR MODIFICATIONS.

The Terms of Use apply exclusively to your access to, browsing of or use of the Sites and do not alter the terms and conditions of any other agreement you may have with us or our parents, subsidiaries or affiliates regarding topics other than the use of the Sites.

The information contained in the Sites is for informational purposes only and shall not be assimilated to or substituted for professional medical advice and does not constitute an offer of or solicitation for the purchase of products or services.

A reference to a product or service on the Sites does not imply that such product or service is or will be available in your country. Your country may be subject to different regulations and conditions of use that restrict that availability of products or services in your country. You should always rely on product information especially created for your country. Products or services referenced on the Sites may be available under different trademarks in different countries and may be approved or cleared by a government regulatory body under different indications and restrictions depending on the particular country.

The information contained on the Sites is intended for use by residents of the United States unless otherwise indicated. The Site may contain links to other websites produced by our affiliates or third parties, which may be located outside of the United States. These sites may have information that applies solely to the particular country where that website is based. Please do not construe anything on a linked website as a promotion or solicitation for any product or service or for the use of any product or service that is not authorized by the laws and regulations of the country where you are located.

The information provided on the Sites is not intended nor recommended as a substitute for professional medical advice or the instruction on the appropriate use of our products or services. You should always consult your gynecologist, physician or other qualified medical professional regarding any medical condition or treatment.

Copyright

The content on the Sites, including, without limitation, the text, designs, graphics, the selection and arrangement thereof, source code, API, software, scripts, graphics, photos, sounds, music, videos, and interactive features (collectively, the “Content”) are owned by the Company, its licensors or other providers of such material and are protected by the applicable copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. Without the prior written consent of the Company, you may not use the Content other than in accordance with the Terms of Use. Furthermore, the redistribution, retransmission, republication, storage, sale or commercial exploitation of the Content is expressly prohibited without the prior written consent of the Company.

No right, title or interest in or to the Sites or the Content is transferred to you. We consent to you browsing and accessing the Sites on your computer and printing or downloading content only for personal use for non-commercial purposes provided that such uses are not competitive with us. The Company neither represents nor warrants that your use of the Content will not infringe upon the rights of third parties not owned by or affiliated with the Company.

Trademarks

The trademarks, logos and service marks (collectively, the “Trademarks”) displayed on the Sites are registered and unregistered Trademarks of the Company and others. Nothing contained on the Sites should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark displayed on the Sites without the prior written consent of the Company or such third party that may own a particular Trademark displayed on the Sites. The Trademarks displayed on the Sites may not be used other than in accordance with the Terms of Use. You are also advised that the Company will aggressively enforce its intellectual property rights to the fullest extent of the law, including seeking criminal prosecution.

Gynesonics is a registered trademark of the Company in the United States and other countries. Sonata System and SONATA Study are trademarks of Gynesonics, Inc.

Use of the Site

As a condition of you accessing, browsing and/or using the Sites, you represent and warrant that: (a) you are at least 18 years of age; (b) you possess the capacity and legal authority to create a binding legal obligation; (c) you will use the Sites in accordance with the Terms of Use; (d) you will comply with all applicable local, state, national and international laws and regulations, including, but not limited to, United States export restrictions, that relate to your use of or activities on the Sites; and (e) all information supplied by you on the Sites is true, accurate, current and complete. We retain the right in our sole discretion to deny access to anyone to the Sites, at any time or from time to time, and for any reason or for no reason, including, but not limited to, for violation of the Terms of Use or the documents referenced herein.

Prohibited Uses

You agree to use the Sites only for lawful purposes. You are responsible for all of your activity in connection with the Sites. You shall not (and shall not permit any other party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Sites, that:

• infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any contractual duty;
• is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion;
• is unlawful or otherwise encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, federal, or
• international law;
• impersonates any person or entity, including any of our employees or representatives; or
• includes anyone’s identification documents or sensitive financial or medical information, without such party’s consent.

In addition, you agree not to:

• send or otherwise post unauthorized commercial communications (such as spam) through the Sites or otherwise use the Sites or the Content for any commercial purpose;
• access, monitor or copy any Content using any robot, spider, scraper or other automated means or any manual process for any purpose without the prior written consent of the Company;
• violate the restrictions in any robot exclusion headers on the Sites or bypass or circumvent other measures employed to prevent or limit access to the Sites;
• introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
• take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on the Company’s infrastructure;
• attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Sites, the servers on which the Sites are stored, or any server, computer or database connected to the Sites;
• deep-link to any portion of the Sites for any purpose without the prior written consent of the Company;
• “frame,” “mirror” or otherwise incorporate any part of the Sites into any other website without the prior written consent of the Company; or
• attack the Sites using a denial-of-service attack or a distributed denial-of-service attack or use any device, software, or routine that interferes with the proper working of the Sites.

Off-Site Links

The third party sites hyperlinked to or from the Sites are not under the control of the Company (for example, links to press releases or news stories). We have not reviewed any or all of the third party sites hyperlinked to or from the Sites and we do not make any endorsements or representations regarding any third party site. We are not responsible for the content or accuracy of any third party sites hyperlinked to or from the Sites. The products and services which can be accessed, purchased or obtained through such third party sites are from persons or entities other than the Company. The Company does not make any representations or warranties of any kind, including, without limitation, warranty of merchantability or warranty of fitness for a particular purpose, with regard to such services and products. When you access these third-party sites, products and services, you do so at your own risk.

Reliance on Information Posted

The information presented on or through the Sites is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Sites, or by anyone who may be informed of any of its contents.

As indicated above, the Sites may include content provided by third parties. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

Products and Services

Our products and services may not be available in all geographic areas. Not all persons or entities are eligible for all of our products or services. We reserve the right to determine, in our sole discretion, the eligibility for any such product or service. Additionally, we reserve the right to cease offering or providing or suspend any product or service at any time, for any or no reason, and without prior notice. The Company will not be liable to you or any third party for any modification, suspension, or discontinuance of any product or service we may offer or facilitate access to.

Privacy and Security

It is a condition of your use of the Sites that all the information you provide to us is correct, current and complete. You agree that all information you provide to the Sites or we otherwise collect on the Sites is governed by the Privacy Policy Gynesonics.com/us/privacy-policy, and you consent to all actions we take with respect to your information consistent with the Privacy Policy.

If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Sites or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information posted.

We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of the Terms of Use.

Monitoring and Enforcement; Termination

We have the right to:

• Take appropriate legal action, including, without limitation, referral to law enforcement, for any illegal or unauthorized use of the Sites.
• Terminate or suspend your access to all or part of the Sites for any or no reason, including, without limitation, any violation of the Terms of Use or to assist with our fraud and abuse detection and prevention efforts.

Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone using the Sites. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

Disclaimer of Representation and Warranties

YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITES SHALL BE AT YOUR OWN RISK AND THAT THE SITES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. THE COMPANY AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSEES AND SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE SITES, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS OR OTHERWISE) TO THE SITES, AND/OR (III) THE PRODUCTS OR SERVICES FOUND AT THE SITES OR ANY SITES LINKED (THROUGH HYPERLINKS OR OTHERWISE) TO THE SITES, AND THE COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.

IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY THE COMPANY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS (INCLUDING, WITHOUT LIMITATION, ITS CUSTOMER SERVICE REPRESENTATIVES), AND SERVICE PROVIDERS WILL (I) CONSTITUTE LEGAL OR MEDICAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THE SITES, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE.

THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THE TERMS OF USE OR YOUR USE OF THE SITES OR THE PRODUCTS AND SERVICES.

Disclaimer of Liability

IN NO EVENT SHALL THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES,  AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE SITES, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS OR OTHERWISE) TO THE SITES, (III) THE PRODUCTS OR SERVICES FOUND AT THE SITES OR ANY SITES LINKED (THROUGH HYPERLINKS OR OTHERWISE) TO THE SITES, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, MEDICAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THE SITES OR ANY SITES LINKED (THROUGH HYPERLINKS OR OTHERWISE) TO THE SITES, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THE SITES OR ANY SITES LINKED (THROUGH HYPERLINKS OR OTHERWISE) TO THE SITES, (IX) ANY CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Please note that some jurisdictions may not allow the exclusion of liability for incidental or consequential damages, so some of the above exclusions may not apply to you.

Indemnification

You agree to defend, indemnify and hold harmless the Company and its directors, officers, employees, agents, representatives and affiliates and any other third party involved in creating, producing or delivering the Sites or the Content from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by the Company directly or indirectly arising from (i) your use of and access to the Sites; (ii) your actual or alleged violation of any provision of the Terms of Use or the policies or agreements which are incorporated herein; and/or (iii) your actual or alleged violation of any third-party right, including, without limitation, any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of the Terms of Use or your use of the Sites.

Claims of Copyright Infringement

The Digital Millennium Copyright Act of 1998 (as amended, the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by the Sites infringe your copyright, you (or your agent) may send the Company a notice requesting that the material be removed, or access to it be blocked. Such notice must include: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed upon; (c) a description of where the material that you claim is infringing is located on the Sites; (d) your address, telephone number, and e-mail address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Notices and counter-notices with respect to the Sites should be sent to [Gynesonics, Inc.: 600 Chesapeak Drive, Redwood City, CA 94063; Attn: Legal; Fax: +1 (650) 299-1566]. The Company suggests that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.

It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.

Choice of Law, Jurisdiction and Venue

The Sites, the Content, the Terms of Use, the Privacy Policy, any suit, claim, action or proceeding arising out of, or with respect to, any of the foregoing, or any judgment entered by any court in respect thereof, shall be governed by and construed in accordance with the laws of the State of California without regard to choice of law principles which might direct the application of the laws of another jurisdiction.  Any suit, action or proceeding arising out of, or with respect to, the Sites, the Content, the Terms of Use or the Privacy Policy, or any judgment entered by any court in respect thereof, shall be brought exclusively in the courts of the State of California located in San Mateo County, California, or, if jurisdiction is appropriate, in the United States District Court for the Northern District of California. You hereby consent to personal jurisdiction in the State of California, acknowledge that venue is proper in the courts of the State of California located in San Mateo County, California or in the United States District Court for the Northern District of California, and waive any objections that may exist, now or in the future, with respect to any of the foregoing.

Prohibited Jurisdictions

The Company does not authorize the downloading or exportation of the Content or any software or technical data from the Sites to any jurisdiction which prohibits the downloading or exportation of such content or data or to any jurisdiction prohibited by United States export control laws.

Severability

In the event that any one or more of the provisions contained in the Terms of Use shall be declared invalid, void or unenforceable, the remaining provisions of the Terms of Use shall remain in full force and effect, and such invalid, void or unenforceable provision shall be interpreted as closely as possible to the manner in which it was written.

Entire Agreement

The Terms of Use and the Privacy Policy constitute the sole and entire agreement between you and the Company with respect to the Sites and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Site.

WS 05293-002.A