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Terms and Conditions of Use

1. ACCEPTANCE OF TERMS

Welcome to the Advanced Bionics (AB) websites, comprising of advancedbionics.com, HearingJourney.com, HearingSuccess.com, myABaccessories.com, myABaccessories.com.au, TheListeningRoom.com, myNaida.com, and any other web properties owned and operated by Advanced Bionics (hereafter known as the “Site” or "Sites"). AB is the name we use to refer to our whole business, including Advanced Bionics, Advanced Bionics LLC and any of the companies that it controls, such as its subsidiaries and affiliates. When we use the words “we” or “ours”, we mean AB.  The Terms and Conditions of Use include any posted guidelines or rules applicable to particular Content or Services (as defined below) and, as updated by AB from time to time, are collectively referred to as the “Terms and Conditions” and govern the use of the Sites and our mobile applications or 'apps'. By using the Sites or our apps, you: (i) agree to be bound by the Terms and Conditions; (ii) represent and warrant that you are at least thirteen (13) years old; (iii) represent and warrant that you have the legal authority to accept the Terms and Conditions; and (iv) agree that any use of the Sites by any Practitioner is in his/her personal capacity and not as a representative or agent of AB. This is a legally binding agreement. If you do not agree with the Terms and Conditions, you are not authorized to use the Sites or our apps.

2. MEDICAL DISCLAIMERS

Much of the information on the Sites relates to products and services offered by AB. The matters on the Sites are for your general educational information only. The Sites may provide certain content (including, without limitation, documents, photographs, videos, advertisements, marketing materials, text, graphics, and images) and services that AB may change or update from time to time (the “Content” and “Services”).

THIS SITES DO NOT PROVIDE MEDICAL ADVICE. The Sites does not provide any form of medical advice, professional services or recommendations. The determination of the need for medical services and the types of health care to provide a patient are decisions that should be made only by a physician or other licensed health care provider. AB does not provide medical advice and the Sites, Content, and Services do not provide a diagnosis or other recommendation for treatment and are not a substitute for professional judgment of a health care professional in diagnosis and treatment of any person. Never disregard medical advice or delay seeking such advice because of something you read on the Sites. Always seek the advice of a physician or other qualified health care provide with any questions you have regarding a medical condition. DO NOT USE THE SITES FOR EMERGENCY MEDICAL SERVICES. IN AN EMERGENCY, CALL 911, YOUR LOCAL EMERGENCY ASSISTANCE NUMBER AND/OR YOUR PERSONAL PHYSICIAN.

Nothing on these Sites is intended to constitute (i) medical advice or counseling, (ii) the practice of medicine, including, without limitation, psychiatry, psychology, psychotherapy or the provision of health care diagnosis or treatment, (iii) the creation of a physician patient or clinical relationship, or (iv) an endorsement, recommendation or sponsorship of any third party product or service by AB or any of its affiliates, agents, employees, consultants or service providers.

3. ACCESS TO THE SITES

Access to portions of the Sites requires login and password information provided by AB. To obtain a password, you must register with the Sites and provide the information requested in the registration process. You will be provided with a login and password. The login and password are provided for the use of the designated person only and are not transferable. If you choose to use your login account, you will be asked to change your password when you initially logon to the Sites.

You agree that you will be responsible for maintaining your password as confidential and for any activity that occurs as a result of your enabling or permitting another person or entity to use your password. You agree to immediately notify AB by one of the methods set forth in Section 6 in the event that (i) your password is lost or stolen, (ii) you become aware of any unauthorized use of your password or of any other breach of security related to the Sites, or (iii) you receive a login and password that belong to another person (in which case you are not authorized to use that login account).

AB is not responsible for any loss or damage arising from your failure to comply with the provisions of this Section. Misuse of a login account, including, without limitation, unauthorized sharing of the login and password, may result, at AB’s sole discretion, in cancellation of the user’s password and other remedies, and AB shall have no liability to the user.

4. CONTENT AND SERVICES

The ability to post Content in the form of text or visual media allows users to share ideas and information of mutual interest. AB cannot and does not monitor all of the material posted or transmitted between or by users. You are advised to use your best judgment and required to abide by the guidelines set forth below when choosing to participate in any information sharing activity. Most of the Sites are available to the public. No information you consider confidential should be posted to the Sites. Any disclosures made through the Sites should only be made after reviewing and agreeing to the Privacy Policy. AB does not make any representation concerning the accuracy or completeness of any Content supplied by users on or through the Sites. AB reserves the right to move, remove, or edit any Content on the Sites at any time for any reason. In the event that any Content appears to be inappropriate for display on this Site for any reason, users are encouraged to contact AB in accordance with Section 6 to request removal of such Content.

By posting to the Sites you agree to be solely responsible for the Content you contribute, link to, or otherwise upload to the Sites and hereby release AB from any liability related to your use of the Sites. You also grant to AB a worldwide, perpetual, irrevocable, royalty-free and fully-paid, transferable (including rights to sublicense) right to exercise all copyright, publicity, and moral rights with respect to any original Content you provide.

5. OPT-OUT

You may contact AB and have your login and password information inactivated. AB will accommodate requests for inactivation and opt-out. Opt-out may be accomplished by e-mail or physical mail to the addresses set forth in Section 6. The information AB obtains from the users will be used only in accordance with AB’s Privacy Policy.

6. CONTACT INFORMATION

Contact the AB office in your region.

7. PROHIBITED BEHAVIOR

You are responsible for all Content that you upload, post, email, or otherwise transmit using the Sites. Likewise, you are responsible for respecting AB’s and third parties’ rights with respect to Content that appears on the Sites and agree not to download, email or otherwise transmit such Content in violation of AB’s and third parties’ rights. You agree to use the Sites solely to accommodate your own personal needs. You agree not to use the Sites, Content, or Services to:

Provide any commercial services to third parties;
Upload, post, email, or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other intellectual property right, privacy right, or publicity right of any person or entity. By uploading, posting, emailing or otherwise transmitting any Content, you represent and warrant that you have all rights to take such action with respect to the Content;
Upload, post, email, or otherwise transmit any Content that is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, pornographic, sexually explicit, invasive of another’s privacy, hateful, racially, ethnically, or otherwise offensive;
Impersonate another person or entity, including without limitation, a representative of AB or its officers, directors, employees or agents, falsely represent or misrepresent your affiliation with another person or entity, or forge headers or otherwise manipulate identifiers that would disguise the origin of any Content transmitted to or through the Sites or Services;
Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, including without limitation, initiation or perpetuation of any “Spam”, “Junk Mail”, chain letters, or any other potentially objectionable form of unsolicited communication;
Use the Sites or Services for any purpose or in any manner that violates any local, state, or federal law or regulation or the law or regulation of any foreign government, including, without limitation, stalking, harassing or threatening AB or other users;
Collect or store personal data with respect to third parties except as contemplated by the Terms and Conditions and then only for the express purpose of providing lawful communication that may reasonably be anticipated by such third parties;
Directly or indirectly, intentionally disrupt or interfere with the Sites or Services in any manner that may materially adversely affect AB or any third party, including, without limitation, by taking any action that imposes an unreasonably or disproportionately large load on our infrastructure or disrupts the functioning of AB’s systems, Content or Services;
Upload, post, email or otherwise transmit any material that contains software viruses or any other code, files or programs designed or known to disable, interrupt, or limit the functionality of any computer hardware, computer software, or telecommunications equipment or facilities;
Upload, post, email or otherwise transmit without authorization any material that contains personal or private information concerning any third party person or entity, including without limitation, phone number(s) or addresses, credit/debit cards, calling cards, account numbers, social security numbers, passwords or other similar information;
Reference the specific commercial name of any natural products that you use. You may refer to the ingredients, and the dosage, but in compliance with the regulations that govern natural products, dietary supplements, and alternative therapies, specific product names are forbidden; or
Post reviews or opinions concerning a doctor or hospital.

8. COMPLIANCE WITH LAWS; HIPAA

You may not use the Sites for any purpose or in any manner that violates any local, state, or federal law or regulation or the law or regulation of any foreign government, including, without limitation, (i) the posting of any protected health information that would constitute an unauthorized use or disclosure under the Health Information Portability and Accountability Act of 1996, including, without limitation, its implementing regulations (“HIPAA”) or any applicable state laws or regulations; (ii) the making of any claim for any product, service, or treatment that would constitute consumer fraud or false or misleading claims; and, (iii) the violation of prohibitions against marketing or advertising unapproved medical devices, drugs, or other medical treatment. You agree that, to the extent required and/or appropriate, you are responsible for obtaining any authorizations, informed consents, institutional or privacy board approvals and/or other required approvals (collectively “Patient Approvals”) prior to submitting protected health information to the Sites, and, upon AB’s request, you agree to present redacted copies of the Patient Approvals to AB. By posting protected health information to the Sites, you represent and warrant that you have obtained and maintain a copy of an appropriate Patient Approval that complies with HIPAA and applicable state law, and that permits the disclosure, copying and distribution of the information through any media and use and disclosure of protected health information as set forth in these Terms and Conditions and the Privacy Policy.

You agree that AB may use the protected health information in any lawful manner and that AB will not return the protected health information to you after you submit it except as required by law. To the extent required, you have informed patients that the protected health information will not be returned and/or expunged and that it may be used and disclosed in accordance with these Terms and Conditions and the Privacy Policy.

9. DISCLAIMER OF WARRANTIES

THE USE OF THE SITES AND SERVICES IS SOLELY AT YOUR OWN RISK. THE SITES AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AB EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SITES, CONTENT AND SERVICES, WHETHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. AB EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR THE ACTIONS OF ANY USER WHO USES THE SITES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. AB MAKES NO WARRANTY THAT THE SITES, CONTENT OR SERVICES WILL MEET YOUR REQUIREMENTS, OR WILL BE UNINTERRUPTED, TIMELY, SECURE, CURRENT, ACCURATE, COMPLETE OR ERROR-FREE OR THAT THE RESULTS THAT MAY BE OBTAINED BY USE OF THE SITES, CONTENT OR SERVICES WILL BE ACCURATE OR RELIABLE. YOU UNDERSTAND AND ACKNOWLEDGE THAT YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY DEFECT IN OR DISSATISFACTION WITH THE SITES, CONTENT OR SERVICES IS TO CEASE TO USE THE SITES OR SERVICES. YOU MAY HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE OR WITHIN NATIONAL JURISDICTIONS.

10. EXCLUSIONS AND LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT AB SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, PERSONAL INJURY/WRONGFUL DEATH, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION EVEN IF AB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATED TO: (A) ERRORS IN OR OMISSIONS FROM THE SITES AND THEIR CONTENT, INCLUDING BUT NOT LIMITED TO TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS, ANY DELAYS, FAILURES, INTERRUPTIONS OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH THE USE OF THE SITES, (B) ANY THIRD PARTY WEB SITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH LINKS IN THE SITES, INCLUDING BUT NOT LIMITED TO ANY ERRORS IN OR OMISSIONS THEREFROM, (C) THE UNAVAILABILITY OF THE SITES OR ANY PORTION THEREOF OR THE COST OR PROCUREMENT OF ANY SUBSTITUTE SITES OR SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICES OBTAINED OR WHICH YOU WERE UNABLE TO OBTAIN, (D) YOUR USE AND ACCESS OF THE SITES, (E) YOUR USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE SITES, (F) ANY DIAGNOSES OR TREATMENT MADE AFTER REVIEWING INFORMATION PROVIDED ON THE SITES OR YOUR RELIANCE ON THE SITES, (G) ANY VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR USE OF THE SITES, OR (H) ANY MATTER OTHERWISE RELATED TO YOUR USE OF THE SITES.

11. PHOTOGRAPHS AND VISUAL CONTENT

You understand that you may be granted the ability to upload, post or transmit images or videos to third party users through the Sites (collectively, “Visual Content”). You authorize AB (and have all of the necessary rights from third parties to authorize AB) the right to copyright, license, publish, broadcast, display, reproduce, and distribute in any manner the Visual Content. You understand that you will not receive any royalties or other reimbursement for permitting AB to use the Visual Content. You grant AB and other users (and have all of the necessary rights from third parties to grant AB and other users) the absolute right and permission to use, re-use, publish, and re-publish the Visual Content, with or without names, or reproductions thereof or excerpts therefrom, made through any medium, and in any and all media now or hereafter known for any purpose whatsoever including, without limitation, in marketing and on other web sites. You also understand that you and any third parties will have no copyright or other rights with respect to the Visual Content as they are used by AB or other users of the Sites. You hereby release, discharge and agree to hold harmless AB and any users, from and against any and all claims and demands, including but not limited to, any claims for copyright infringement, defamation, invasion of privacy or right of publicity, arising out of or in connection with any use of the Visual Content.

You represent and warrant that any Patient Approvals or releases referenced in Section 8 are consistent with the terms of this Section 11 and include sufficient language to permit you to agree to the terms of this Section 11.

12. DISCLAIMER OF CONTENT

You agree that all Content and Services provided in connection with the Sites are the responsibility of the person or entity providing such Content. You understand and acknowledge that AB assumes no responsibility to screen or review Content provided as part of the Sites. AB shall have the right, but not the obligation, in its sole discretion to refuse, monitor, or remove any Content that is available on the Sites. AB expressly disclaims all responsibility or liability to users and any other person or entity for the performance or nonperformance of the Content review.

THE CONTENT FOUND ON THE SITES MAY NOT BE APPROPRIATE OR SATISFACTORY FOR YOUR USE, AND YOU SHOULD VERIFY ALL CONTENT BEFORE RELYING ON IT.

13. INTELLECTUAL PROPERTY

Nothing herein shall be construed as conferring by implication, estoppel, or otherwise, any license or right under any copyright, patent, trademark or other proprietary interest of AB, or third parties.

The Content is owned by AB and third parties and is protected by the United States Copyright Act of 1976, as amended, and the copyright laws of other countries. Certain materials are used by permission of their respective owners. The Content of the Sites may not be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without the prior written permission of AB, except that, subject to your compliance with the Terms and Conditions, AB authorizes you to view or download a single copy of the Content provided that you keep intact all copyright, trademark, and other proprietary notices. Modification or use of Content for any other purpose is a violation of the rights of AB or third parties.

Trademarks

We also own the names we use for our products and services on the Sites, and these names are protected by United States and foreign trademark laws. An ® following a name on the Sites indicates that the trademark has been registered in the United States. A ^{^™} following a name on the Sites indicates that it is a trademark that AB claims protection under US law and foreign trademark laws. All trademarks are the property of their respective owners. You agree not to use or display trademarks without the prior written consent of AB or the owner of such marks.

Xylex® is a registered trademark of the General Electric Company.

Skinit® is a registered trademark of Skinit, Inc.

Velcro® is a registered trademark of Velcro Industries B.V. LLC.

14. LINKS

The Sites may include links to other World Wide Web sites. You acknowledge and agree that such links are provided for your convenience and do not reflect any endorsement by AB with respect to the provider of such linked site or the quality, reliability or any other characteristic or feature of such linked site and AB is not responsible in any manner (including without limitation with respect to any loss or injury you suffer) for any matter associated with the linked site, including without limitation, the content provided on or through any such linked site or your reliance thereon. AB MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY LINKED SITE: YOUR USE OF ANY LINKED SITE IS SOLELY AT YOUR OWN RISK. In addition, you should be aware that your use of any linked site is subject to the terms and conditions applicable to that site.

15. INDEMNITY

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, you hereby release and forever discharge AB and its respective officers, directors, shareholders, employees and agents, its affiliates, of and from all actions, causes of action, suits, debts, duties, accounts, bonds, covenants, contracts, guarantees, claims and demands whatsoever that you had, now have or hereafter can, shall or may have of or by an reason of or in any way arising out of any cause, matter or thing whatsoever existing up to the present time and, in particular, without in any way limiting the generality of the foregoing, for and by reason of or in any way arising out of your use of the Sites or your violation of these Terms and Conditions. You agree to hold harmless and indemnify AB and its affiliates, and each of its officers, directors, employees and agents from and against any and all third party claims, demands, proceedings and any losses, liabilities, damages, costs, payments and expenses, including reasonable attorneys’ fees, costs and expenses arising out of, directly or indirectly, your use of the Sites including, without limitation (a) any unlawful use of the Sites, and/or (b) any use of the Sites that violates the Terms and Conditions.

16. JURISDICTION AND VENUE

Users and AB agree that this Agreement and the relationship between and among the users and AB will be governed by the laws of the State of California, without respect to its conflict of laws provisions and that venue with respect to any dispute between or among the users and AB will rest exclusively in the state or federal courts located in Los Angeles, California.

17. CHANGES

AB may change the Terms and Conditions from time-to-time. If such a change is made, AB will post the revised Terms and Conditions on the Site. AB reserves the right to add to or change the Site or cease offering the Site or terminate your use of the Site at any time and without liability. AB reserves the right to refuse to offer access to the Site, Content, and/or Services to anyone at anytime without notice.

18. MISCELLANEOUS

The Terms and Conditions constitute the entire agreement between and among the users and AB relating to the Sites. There is no agency, partnership, joint venture, employee-employer or physician-patient relationship between any user and AB arising solely through the use of the Sites. The Terms and Conditions are binding upon your successors, assigns, heirs and executors. If any provision of the Terms and Conditions is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Terms and Conditions, which shall remain in full force and effect. The failure of AB to exercise or enforce any right or provision of the Terms and Conditions shall not constitute a waiver of such right or condition. Any claim or cause of action arising out of or related to the Sites or the Terms and Conditions must be filed within one year after such claim or cause of action arose. The section titles of the Terms and Conditions are merely for convenience and will not have any effect on the substantive meaning of this Agreement.

YOUR USE OF THE SITES INDICATES THAT YOU AGREE TO THE FOREGOING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS, DO NOT USE THE SITES.