Terms of Use
Welcome to Xybion.com. Please read these Terms and Conditions (T & Cs) carefully before using or obtaining any information through our website. Your use of our website is subject to you agreeing to these T & Cs. By accessing any page, or clicking on any link, or viewing any page of our website you agree to be bound by these T & Cs. You waive any requirement that these T & Cs be evidenced by a written document; you may preserve these T & Cs by printing them for your records. If you do not agree with these T & C’s please do not use our website.
Effective Date: January 15, 2006
These T & Cs supersede and replace in their entirety any prior T & Cs relating to the use of the website that were displayed on the website before the above stated date.
Contents:
- Notice to Users
- Disclaimer of Warranties & Representations
- Limitation of Liability
- Restricted-Use License
- Client-Only Areas
- Changes
- Availability
- Viruses
- Third Party Website Links
- Indemnification
- Termination
- Choice of Law
- General
- Contact Information
When you access any part of Xybion.com you represent and warrant to Xybion Medical Systems Corporation (Xybion) that you have attained the legal age of majority (as determined under the laws of the jurisdiction where you access the website and your domicile (if different). In addition, you consent to these T & Cs and have read and accept Xybion’s privacy and trademarks statements. Each time you visit the website, you should review Xybion’s T & Cs, and privacy and trademarks statements because Xybion reserves the right to change them from time to time without prior notice or liability to you.
This website is the sole and exclusive property of Xybion and may be monitored by Xybion and its Internet Service Provider (ISP) for security purposes; to ensure that the website remains available to all users; to protect Xybion’s information and the ISP’s computer and network resources; to cooperate with federal, state and local law enforcement authorities; and for any other lawful purpose. By using our website, you are expressly consenting to these monitoring activities.
Attempts to defeat or circumvent any security features, to use our website or our ISP’s hosting resources for other than those sole purposes intended by Xybion, to deny service to other users, to access, obtain, alter, damage, or destroy the website or the information therein, or otherwise to interfere with our system or its operation are prohibited. Evidence of such acts will be disclosed to law enforcement authorities and may result in criminal prosecution under the Computer Fraud and Abuse Act of 1986 (Pub. L. 99-474) and the National Information Infrastructure Protection Act of 1996 (Pub. L. 104-294), (18 U.S.C. 1030), or other applicable criminal laws.
Disclaimer of Warranties & Representations
This website is designed to provide general information about Xybion, and its products and services. All information, including any links, on the website is presented for informational purposes only. You should not act or rely on any information in this website without contacting Xybion.
XYBION MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SUITABILITY FOR ANY PURPOSE; THE ACCURACY, THE COMPLETENESS, OR THE TIMELINESS; OF ANY INFORMATION PROVIDED IN THE WEBSITE. XYBION SHALL HAVE NO LIABILITY WITH RESPECT TO THE INFORMATION PROVIDED OR ANY USER'S USE OF THE INFORMATION PROVIDED IN THE WEBSITE OR ANY FAULTS, INTERRUPTIONS OR DELAYS IN PROVIDING THE INFORMATION OR ANY INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION. XYBION HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Limitation of Liability
Subject to applicable law, use of this website and its content is at your sole risk. Your use is subject to conditions that you are solely responsible to comply, including but not limited to these T &Cs, tariffs, conditions of carriage, international conventions and arrangements, and federal government regulations. IN NO EVENT WILL XYBION OR ITS ISP BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES FOR ANY USE OF THIS SITE, ANY HYPER LINKED WEBSITE, INCLUDING, WITHOUT LIMITATION, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH(I) ANY USE OF, BROWSING OR DOWNLOADING OF ANY PART OF THE WEBSITE, (II) ANY FAILURE OR DELAY (INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE ANY PART OF THE WEBSITE), OR (III) THE PERFORMANCE OR NON PERFORMANCE BY XYBION, OR (IV) ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, EVEN IF XYBION HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES TO ANY THIRD PARTY.
If, notwithstanding the above limitations, Xybion is found liable by a court of competence jurisdiction, for any loss or damage which arises out of or is in any way connected with any event described above, then Xybion’s liability shall in no event exceed the total sum of US$250.00. Some states do not allow the limitation of liability, so the limitations above may not apply to you.
Restricted-Use License
Xybion grants you a restricted, personal, nontransferable, nonexclusive, revocable license, without the right to sublicense or re-license, to access and use this website only as expressly permitted in these T & Cs. Except for this restricted-use license, Xybion does not grant you any other rights or license, including without limitation, rights of title; any rights or license not expressly granted herein are reserved for Xybion’s sole benefit.
You may use the website only for your personal, non-commercial use. You may display, download, or print one (1) copy of any portion of the website. If you do so, you may not modify the content in any way; you must identify Xybion as the lawful owner of the content; and reproduce Xybion’s and other third party’s’ copyright notices as displayed on the relevant page(s) that you downloaded, printed or copied.
Except as explicitly authorized by, and without modifying, the above restricted-use license you may not:
- Use any content to provide or promote your own or third party websites, services or products;
- Except as provided herein, establish links to any part of the website;
- Sell, offer for sale, transfer, distribute, or license any portion of the website in any form to a third party for any purpose;
- Copy, mirror, reproduce, upload, post, display, republish, distribute, or transmit, any part of the website, regardless of method;
- Modify, translate, or create derivative works or competitive products or services from, or based on, any content in the website;
- Place false or misleading information on any part of the website;
- Post, transmit, create links, or use any redirection techniques to or from any unlawful, threatening, libelous, defamatory, obscene, indecent, inflammatory, pornographic or profane material or that which encourages conduct that would be considered a criminal offense, give rise to civil unrest or liability, or otherwise violate any law;
- Upload or transmit to the website or use any device or software that (i) contains viruses, Trojan horses, worms, time bombs, or other routines that may adversely affect the performance or function of; damage; interfere or attempt to interfere with; intercept or attempt to intercept transmission of information to or from; appropriate; or impose an unreasonable load on; the website or any hosting computer systems or networks; (ii) hides, renames or otherwise disguises the identity or origin of the true IP address accessing the website or (iii) infringes upon the rights of any third party.
Client-Only Areas
Access to certain (restricted) areas of the website is only available to Xybion’s current clients or to users that Xybion, in its sole discretion, has provided prior written authorization (individually and collectively authorized users). The use of the client only areas of the website are subject to additional terms and conditions which are available for review by authorized users after they properly gain access to the restricted areas. All authorized users of the client only areas agree that they will abide by these T & Cs and those additional T & Cs applicable to the client only areas of the website.
Any attempt to gain access to the client only areas of the website by any unauthorized user by either manually entering requested identifying information or by any automated process is a prima facie breach of these T & Cs and shall constitute an act of trespass.
Changes
Xybion reserves the right to, in its sole discretion, change, delete, supplement, update, discontinue, suspend, or modify (modifications) any part (including the client only areas) of, or the entire, website at any time and without prior notice to you. However, Xybion makes no representation nor does it provide any warranty that Xybion will make any modifications to this website. You agree that Xybion shall not be liable to you for any delay or other damages that might result from such modifications (or lack thereof), suspension, or discontinuance of the website in part or whole. Xybion may also, at any time establish or change practices, processes, or limits on access concerning the website.
Xybion, in its sole determination, may modify these terms and conditions, at any time without prior notice to you.
Availability
Xybion will use reasonable commercial efforts to keep the website available on a 24-hour/7-day-a-week basis, subject to necessary scheduled downtime for maintenance, unscheduled maintenance, and system outages. Xybion does not guarantee or warrant that access to the website will be uninterrupted or available at all times. Xybion assumes no liability or responsibility for any delay, interruption, or downtime, regardless of duration.
Viruses
Xybion makes reasonable attempts to exclude viruses from the website, but cannot ensure that it will be at all times free from viruses or other destructive software. You are urged to take appropriate safeguards before downloading information from the website. Xybion assumes no responsibility for any damages to computer equipment or other property that may result from use of, or downloading information from, the website.
Third Party Website Links
Outbound Links: For your convenience, the website may contain links to third party websites. When you click on one of these links, you are leaving Xybion’s website and entering another site. You should carefully review the terms and conditions of use, privacy and other notices of the third party websites, because they will apply to your visit to those other websites.
Inbound Links: Xybion allows links from a third party website to the home page of our website, through a plain text link, provided that (i) you give Xybion prior written notice of such link by contacting Xybion’s customer service, to request Xybion's permission to establish the link; (ii) you immediately discontinue providing a link to our website upon Xybion’s request, in its sole discretion; (iii) you do not indicate, claim, or otherwise implicitly or explicitly infer, that Xybion has endorsed you or your products or services, or that you are affiliated with Xybion, (iv) you do not present Xybion in a false light, or provide misleading or false information about Xybion, its website, or products and services, (v) you do not remove or obscure any copyright notices, or other notices on Xybion’s website; (vi) you do not use or modify any Xybion registered or unregistered trademark or service mark; and (vii) you do not replicate, frame or use other techniques to enclose or replicate any portion of the website or mirror the content of the website. Linking to any portion of the website other than to the Xybion homepage is strictly prohibited unless approved by Xybion in writing prior to the establishment of the link.
XYBION IS NOT RESPONSIBLE FOR ANY THIRD PARTY WEBSITES AND DOES NOT ENDORSE OR MAKE ANY REPRESENTATIONS WHATSOEVER REGARDING THE CONTENTS, COMPLETENESS, ACCURACY OR TIMELINESS OF ANY INFORMATION PROVIDED ON ANY OTHER WEBSITES LINKED FROM XYBION’S WEBSITE OR PROVIDERS OF ANY INFORMATION CONTAINED ON ANY WEBSITES THAT LINK TO XYBION’S WEBSITE.
Indemnification
You agree to defend and indemnify Xybion and its ISP, and each of their respective officers, directors, employees and agents from and against any claim, cause of action or demand, including without limitation any legal and other fees, in excess of the liability described above, in any action filed or commenced by any third party against Xybion in any jurisdiction as a result of (i) your breach of these T & Cs or the documents made part of these Terms by reference, (ii) your violation of any law or the rights of a third party or (iii) your use of the website.
Termination
Xybion, in its sole discretion, may, at any time and without advance notice or liability, terminate or restrict your access to all or any portion of the website, even if access continues to be available to other users. Upon such termination or suspension, you must immediately discontinue use of the website, and destroy any copies that you may have made.
Choice of Law
The laws of the State of New Jersey without regard to its conflict of law rules will govern these T & Cs. The United Nations Convention on Contracts for the International Sale of Goods will not apply. If you take any legal action relating to your use of the website or these T & Cs, you agree to file such action only in the state and federal courts located in Morris County, New Jersey (USA). In any action that Xybion may initiate, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to costs, both taxable and non-taxable, and reasonable attorneys' fees.
General
Your use of the website and therefore, your acceptance of these T & Cs, do not create a joint venture, partnership, employment, or agency relationship with Xybion. You may not assign, delegate, or transfer your rights or obligations hereunder.
Xybion’s failure to enforce or its delay in enforcement of any provision, right or option herein shall in no way be construed to be a waiver of such provision, right or option, nor shall such inaction be deemed a waiver of any other right which Xybion may otherwise have at law or in equity.
If a court of competent jurisdiction finds any term to be unenforceable or invalid, that term will be enforced to the fullest extent permitted by applicable law and all other terms will remain valid and enforceable.
The headings are for your convenience and reference; they do not limit or affect the terms contained herein These terms, together with those made a part of these terms by reference, make up the entire agreement between us relating to your use of the website, and replaces any prior understandings or agreements (whether oral or written).
Contact Information
If you have any questions or concerns about these T & Cs or if you need further assistance with respect to accessing or using of the website, you may contact our Customer Service department. We will attempt to promptly respond to your questions or concerns after we receive them.
Xybion Medical Systems Corporation
Attn: Customer Service
240 Cedar Knolls Road
Cedar Knolls, New Jersey 07927
Tel: (973) 538-5111
Fax: (973) 540-9712