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Terms of Use(Last updated June 30, 2006) Somaxon Pharmaceuticals, Inc. (“Somaxon,” “us” or “we”) maintains the website www.somaxon.com (the “Somaxon Website”). By accessing and/or using the Somaxon Website, you are expressly agreeing to comply with and be bound by these Terms of Use (these “Terms of Use”). If you do not agree with these Terms of Use, you are not authorized to use the Somaxon Website. Somaxon reserves the right to change or update these Terms of Use at any time without prior notice to you. The most recent effective date of these Terms of Use is listed at the top of this page. Please periodically link to and review these Terms of Use, as your continued use of the Somaxon Website means you agree to comply with any changes. I. Product and Medical Information.All of the Somaxon products described in the Somaxon Website are currently available for non-commercial, investigational use only. Nothing contained on the Somaxon Website is intended as a promotion of any product or recommendation for the use of any product in a way which conflicts with the laws and regulations of the country in which you are located. The medical information and other Somaxon Content (as defined below) provided on the Somaxon Website is intended for general educational purposes only and is not intended as a substitute for professional medical advice, diagnosis or treatment. In particular, you should not rely upon the content contained herein for diagnosing a health problem or disease. Due to the rapid nature of change in medical science, the information provided on the Somaxon Website may not be current. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding our products or any medical condition you or your family might have. Never disregard professional medical advice or delay in seeking it because of something you have read on the Somaxon Website. II. Proprietary Rights and Permitted Use.Please note that we have invested a significant amount of time, effort, and resources in the creation of the Somaxon Website, which is protected by U.S. and international copyright and intellectual property laws. You understand and agree that Somaxon retains all right, title, and interest in (including all copyrights, service marks, trademarks, trade secrets and other intellectual property rights) and to all content, including without limitation, any and all text, data, graphics, images, sound, products and other information provided on the Somaxon Website, whether by Somaxon or users and whether in print, machine-readable, visual or audible form (altogether, “Somaxon Content”). You may view, download, print and retain a copy of the Somaxon Content displayed on the Somaxon Website only for your own personal use. The Somaxon Content may not be distributed, downloaded, uploaded, modified, reused, reproduced, reposted, retransmitted, disseminated, sold, published or circulated or otherwise used in any way whatsoever except as permitted by the foregoing license. All trademarks, product names, whether or not appearing in large print or with the trademark symbol, are trademarks of Somaxon, its affiliates, related companies or its licensors or joint venture partners unless otherwise noted. The use or misuse of any of these trademarks or other materials, except as permitted herein, is expressly prohibited and may be in violation of copyright law, trademark law, the law of slander and libel, the law of privacy and publicity, and communications regulations and statues. No license or right is intended to be conveyed to you under any trademark of Somaxon or any third party, whether by implication, estoppels or otherwise. You may not use any Somaxon trademark without our prior written consent. Further, you agree not to remove, alter or obscure any such notices on any printouts, screen displays or copies thereof. You agree not to add any logos or other marks indicating origin or ownership or any data or content originally found thereon to any of the foregoing displays, printouts or copies thereof. If you wish to obtain permission to reprint or reproduce any materials appearing on the Somaxon Website other than as permitted above, you may contact us at info@somaxon.com. All rights not expressly granted herein are reserved. III. Forward Looking Statements.The Somaxon Website may contain forward-looking statements that are subject to risks and uncertainties that may cause actual results to differ from those foreseen. The inclusion of forward-looking statements should not be regarded as a representation by Somaxon that any of its plans will be achieved. Actual results may vary materially from those set forth within the Somaxon Website due to the risks and uncertainties inherent in Somaxon’s business including, without limitation, statements about: the progress and timing of our clinical trials; difficulties or delays in development, testing, obtaining regulatory approval, producing and marketing our products; unexpected adverse side effects or inadequate therapeutic efficacy of our products that could delay or prevent product development or commercialization, or that could result in recalls or product liability claims; the scope and validity of patent protection for our products; and our ability to obtain additional financing to support our operations. All forward-looking statements are qualified in their entirety by this cautionary statement and Somaxon undertakes no obligation to revise or update the Somaxon Website site to reflect events or circumstances. IV. Feedback.Somaxon will treat any suggestions, questions, comments, data, materials or the like other than personally identifiable information (collectively, the “Feedback”) sent to Somaxon as non-confidential and non-proprietary information. Somaxon shall have no obligation of any kind to you or a third party with respect to such Feedback. You agree that Somaxon shall be free to reproduce, use, disclose, exhibit, display, transform, create derivative works and distribute such Feedback to others without limitation and without payment of any consideration to you or a third party. You further agree that Somaxon shall be free to use and exploit in any manner any ideas, concepts, know-how or techniques contained in such Feedback for any purpose without your or a third party’s consent, including but not limited to developing, manufacturing and marketing products and services. Notwithstanding the foregoing, any personal information you send us shall be subject to our Privacy Policy. V. Indemnity.The Somaxon Website is being provided by Somaxon to you as a free service. You agree that you shall be solely responsible for any and all liabilities arising from: (i) your failure to comply with these Terms of Use; (ii) your use of the Somaxon Website, (iii) your use of or reliance on any Somaxon Content, including any medical information provided on the Somaxon Website and/or (iv) any authorized disclosure (including, without limitation, your authorization that Somaxon disclose your personal information and credentials to our human resources department). You agree to hold Somaxon and Somaxon’s directors, officers, employees, agents, attorneys, subsidiaries, affiliates and sublicensees and each of their respective successors and assigns harmless from all damages, costs, expenses, injuries and other liabilities including, but not limited to, attorneys’ fees and expenses relating to any claim arising out or resulting from your access to the Somaxon Website and the Somaxon Content or your use, disclosure or authorization for Somaxon to disclose any data or content thereon. VI. No Warranty.You acknowledge that the Somaxon Website and the Somaxon Content are provided “AS IS,” “AS-AVAILABLE” and “WITH ALL FAULTS.” Somaxon, its employees, subsidiaries and affiliates make no warranty as to the Somaxon Website and the entire risk is with you. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOMAXON, ITS directors, officers, EMPLOYEES, SUBSIDIARIES AND AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Somaxon does not warrant that the Somaxon website will be uninterrupted, secure, or error-free, that defects will be corrected, or that the Somaxon website or the server that makes it available are free of viruses or other harmful components. You assume all responsibility for protecting yourself by using anti-virus programs and firewalls. Information contained on the Somaxon website may be incomplete, outdated, inaccurate or contain typographical errors. Somaxon does not warrant or make any representation regarding the use of the material on the Somaxon website in terms of its correctness, accuracy, reliability, or currency. VII. Exclusion of Damages; Limitation on Liability.Your use of the somaxon website is at your own risk. In no event shall Somaxon or any of its directors, officers, employees, subsidiaries or affiliates be liable for any direct, indirect, special, incidental, punitive, consequential or exemplary damages (including but not limited to, damages for loss of business, lost profits, litigation, LOSS OF DATA, LOSS OF SERVICES, PERSONAL INJURY (INCLUDING DEATH) OR DAMAGES TO you or YOUR HARDWARE OR SOFTWARE, EVEN IF SOMAXON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) arising out of or in connection with your use of the Somaxon Website or your reliance on the Somaxon content, whether based on contract, negligence, tort, strict liability OR ANY OTHER THEORY OF LEGAL LIABILITY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. Any claims arising in connection with your use of the Somaxon Website or any Somaxon Content (including, without limitation, any product) must be brought within one (1) year of the date of the event giving rise to such action occurred. VIII. General Provisions.a. Severability. If any provision of these Terms of Use is held to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect. b. Headings. Section titles in these Terms of Use are for convenience and do not define, limit, or extend any provision of these Terms of Use. c. Assignment. You may not assign or otherwise transfer in any way any of the rights and obligations arising out of these Terms of Use without the prior written consent of Somaxon, which may be withheld at its sole and absolute discretion. Somaxon may assign these Terms of Use in whole or in part. d. Choice of Law. These Terms of Use shall be governed by the laws of the State of California as such laws are applied to contracts executed in and to be performed entirely within California by California residents. This means that California law will be applied to the interpretation of these Terms of Use even for non-California residents. e. Invalidity. Any clause deemed invalid or unenforceable shall be deemed severable and shall not affect the validity or enforceability of the remaining provisions. f. Arbitration. Any controversy, dispute or claim of any nature whatsoever, arising out of, in connection with or in relation to these Terms of Use, or otherwise involving any party hereto, including any claim based on contract, tort or statute that may lawfully be arbitrated, and including the issue of arbitrability of any such disputes, will be resolved by final and binding arbitration before a retired judge or justice in San Diego, California. Any interim or final relief or award granted by the Arbitrator, including without limitation any provisional relief, may be enforced, and final judgment upon any award or decision rendered by the Arbitrator may be entered and enforced, by any state or federal court having jurisdiction. g. Void Where Prohibited. Although the Somaxon Content on the Somaxon Website is accessible to users outside of the United States, the Somaxon Content herein is intended for use only by residents of the United States. Other countries and jurisdictions may have laws, regulatory requirements and medical practices that differ from those in the United States. Somaxon may have links to other sites some of which are outside the United States. Those websites may have information that is appropriate only to that particular originating country. h. Entire Agreement; Amendments. These Terms of Use and our Privacy Policy constitute the entire agreement between you and Somaxon with respect to the subject matter hereof and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written. Unless otherwise required by law, Somaxon may amend these Terms of Use without prior notice to you. No waiver of any of the provisions of these Terms of Use shall be deemed or shall constitute a waiver of any other provision of these Terms of Use, whether or not similar, nor shall any such waiver constitute a continuing waiver unless otherwise expressly provided. IX. Contact.If you have any questions about the foregoing, please contact Somaxon at the following e-mail address: info@somaxon.com or mail us at:
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