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10/26/2010

Zogenix, Inc., ("Zogenix", "us" or "we"), maintains the Web site www.SumavelDosePro.com (the "SUMAVEL^® DosePro^® Web site"). By accessing and/or using the SUMAVEL DosePro Web site, you are expressly agreeing to comply with and be bound by these Terms of Use (the "Terms of Use"). If you do not agree with these Terms of Use, you are not authorized to access or use the SUMAVEL DosePro Web site. Zogenix reserves the right to revise 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. Your continued use of the SUMAVEL DosePro Web site subsequent to the posting of any updated Terms of Use means you agree to comply with any such updated terms.

Content

The information provided on the SUMAVEL DosePro Web site is for general product information and educational purposes only. As such, the SUMAVEL DosePro Web site and its contents should not be relied upon as an exclusive source of information and is not intended to be a substitute for professional medical advice, diagnosis or treatment. In particular, you should not rely on the content contained herein for diagnosing a health problem or disease. 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 SUMAVEL DosePro Web site.

Proprietary Rights

We have invested a significant amount of time, effort, and resources in the creation of the SUMAVEL DosePro Web site, which is protected by U.S. and international copyright and intellectual property laws. You understand and agree that Zogenix and/or its licensors retain all right, title, and interest in the SUMAVEL DosePro Web site (including all copyrights, patents, service marks, trademarks and other intellectual property rights) and to all content, including without limitation, any and all medical and product information, text, data, graphics, images, sound, products, programs and other information provided on or to the SUMAVEL DosePro Web site, whether by Zogenix or users and whether in print, machine-readable, visual or audible form (altogether, "SUMAVEL DosePro Content"). You may access, download, display, print and retain SUMAVEL DosePro Content from the SUMAVEL DosePro Web site solely for your own educational use. The SUMAVEL DosePro 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 herein. All trademarks, product names, whether or not appearing in large print or with the trademark symbol, are trademarks of Zogenix, its affiliates, related companies or its licensors or joint venture partners unless otherwise noted. The use of any SUMAVEL DosePro Content, except as permitted herein, is expressly prohibited and may be in violation of copyright law, trademark law and unfair competition laws. No license or right is intended to be conveyed to you under any trademark of SUMAVEL DosePro or any third party, whether by implication, estoppel or otherwise. Further, you agree not to remove, alter or obscure any intellectual property 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 SUMAVEL DosePro Web site other than as permitted above, you may contact us at info@zogenix.com. All rights not expressly granted herein are reserved.

Separate or Additional Terms

Notwithstanding anything contained in the foregoing paragraph, certain SUMAVEL DosePro Content on the SUMAVEL DosePro Web site may be subject to separate or additional terms or conditions of use as stated either on the SUMAVEL DosePro Web site or in such SUMAVEL DosePro Content. You agree to comply with such terms and conditions with respect to your use of such SUMAVEL DosePro Content.

Personally Identifiable Information

By submitting your name, company, e-mail address, classification and any other personally identifiable information to us through the SUMAVEL DosePro Web site, you hereby represent and warrant that all such personal information is accurate and complete, and grant to Zogenix a royalty-free license to use and disclose this information in accordance with our Privacy Policy. Please review Zogenix's Privacy Policy before submitting any personally identifiable information to Zogenix.

Feedback

Zogenix will treat any suggestions, questions, comments, data, materials or the like other than personally identifiable information (collectively, the "Feedback") sent to Zogenix as non-confidential and non-proprietary information. You represent and warrant that you have the right to provide such Feedback and that it will not infringe any third party rights. Zogenix shall have no obligation of any kind to you or a third party with respect to such Feedback. You agree that Zogenix 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, although Zogenix shall have no obligation to do so, Zogenix 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.

Indemnity

The SUMAVEL DosePro Web site is being provided by Zogenix 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 SUMAVEL DosePro Web site; (iii) your use of or reliance on any SUMAVEL DosePro Content, including any medical information provided on the SUMAVEL DosePro Web site and/or (iv) any authorized disclosure (including, without limitation, your authorization that Zogenix disclose your personal information and credentials to our human resources department). You agree to hold Zogenix and Zogenix's directors, officers, employees, agents, attorneys, subsidiaries, affiliates and sublicensees and each of their respective successors and assigns harmless from any and all damages, costs, expenses and other liabilities including, but not limited to, attorneys' fees and expenses relating to any claim arising out of or resulting from your access to the SUMAVEL DosePro Web site and the Zogenix Content thereon or your use, disclosure or authorization for Zogenix to disclose any data or content thereon.

No Warranty

You acknowledge that the services and SUMAVEL DosePro Content located on the SUMAVEL DosePro Web site are provided "AS IS", "AS-AVAILABLE" and "WITH ALL FAULTS." Zogenix, its directors, officers, employees, subsidiaries and affiliates make no warranty as to the SUMAVEL DosePro Web site and the entire risk with respect thereto is with you. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ZOGENIX, 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. ZOGENIX DOES NOT WARRANT THAT THE SUMAVEL DOSEPRO WEB SITE WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SUMAVEL DOSEPRO WEB SITE 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 SUMAVEL DOSEPRO WEB SITE MAY BE INCOMPLETE, OUTDATED, INACCURATE OR CONTAIN TYPOGRAPHICAL ERRORS. ZOGENIX DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OF THE MATERIAL ON THE ZOGENIX WEB SITE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR CURRENCY.

General Provisions

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 Zogenix, which consent may be withheld at Zogenix's sole and absolute discretion. Zogenix may assign these Terms of Use in whole or in part at any time with or without notice to you.
Choice of Law. The 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.
Void Where Prohibited. The SUMAVEL DosePro Web site and the SUMAVEL DosePro Content are intended to comply with the laws and regulations in the United States. Although the SUMAVEL DosePro Content on the SUMAVEL DosePro Web site is accessible to users outside of the United States, the SUMAVEL DosePro Content 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. The SUMAVEL DosePro Web site may include links to other sites, some of which may be outside the United States. Those Web sites may have information that is appropriate only to that particular originating country. Invalidity. Any clause deemed invalid or unenforceable shall be deemed severable and shall not affect the validity or enforceability of the remaining provisions.
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.
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 arising out of your use of this Web site, 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. However, either party may bring an action for a preliminary injunction and seek to and enforce the same against the other in any court of competent jurisdiction.
In connection with the foregoing agreement to arbitration, you and Zogenix acknowledge and agree to waive certain rights to litigate disputes in court, to receive a jury trial, or to participate as a plaintiff or as a class member in any claim on a class or consolidated basis or in a representative capacity. You and Zogenix both agree that any arbitration will be conducted on an individual basis and not a consolidated, class-wide, or representative basis and the arbitrator shall have no authority to proceed with an arbitration on a class or representative basis. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If for any reason the arbitration clause set forth in this user agreement is deemed inapplicable or invalid, or the extent the arbitration clause allows for litigation of disputes in court, you and Zogenix both waive, to the fullest extent allowed by law, any right to pursue or to participate as a plaintiff or as a class member in any claim on a class or consolidated basis or in a representative capacity. 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.
Entire Agreement; Amendments. These Terms of Use and our Privacy Policy constitute the entire agreement between you and Zogenix 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, Zogenix 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.

Contact

If you have any questions about the foregoing, please contact Zogenix at the following e-mail address: info@zogenix.com or send a letter to: Zogenix, Inc., 12671 High Bluff Drive, Suite 200, San Diego, CA 92130.