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Aysa Website Terms of Use

Version August 23, 2018

Logical Images, Inc. d/b/a VisualDx (“VisualDx”, “we”, “us”, or “our”) has created these Aysa Website Terms of Use (these “Terms of Use”). These Terms of Use apply to the Aysa website located at www.askaysa.com, and all associated websites linked to www.askaysa.com by VisualDx, its subsidiaries and affiliates, including Aysa sites around the world (collectively, the “Site”). The Site is the property of VisualDx and its licensors. The purpose of these Terms of Use is to inform you (“Customer”, “you”, “your”, or “yourself”) as a user of the Site of the terms and conditions that govern your use of the Site. Subject to the terms and conditions of these Terms of Use and as long as you comply with these Terms of Use, VisualDx grants you a personal, non-exclusive, non-transferable, limited privilege to access and use the Site.

PLEASE READ THESE TERMS OF USE CAREFULLY IN ORDER TO ENSURE THAT YOU UNDERSTAND, AGREE TO, AND ACCEPT IT IN ITS ENTIRETY AS THESE TERMS OF USE CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS AND VARIOUS LIMITATIONS AND EXCLUSIONS RELATED THERETO. By using the Site, you acknowledge that you understand, agree to, and accept, without limitation or qualification, all of the following terms and conditions of these Terms of Use without modification:

1. Site Content; Products and Services; Intellectual Property

All text, graphics, user interfaces, visual interfaces, information, documents, materials, photographs, trademarks, logos, sounds, music, artwork, and computer code contained on or derived from the Site, including, without limitation, the design, structure, selection, coordination, expression, “look and feel”, and arrangement thereof (collectively, the “Site Content”), (including, without limitation, all associated copyright, patent, trademark, trade secret, and other intellectual property rights and all moral rights related thereto) are owned or licensed by VisualDx and are protected by copyright, patent, trademark, trade secret, and trade dress laws, and various other intellectual property rights and unfair competition laws. In addition, the web-based software hosted by VisualDx known as Aysa (the “Aysa App”) and any other products and services offered by VisualDx on or through the Site (the Aysa App and such other products and services are collectively referred to in these Terms of Use as the “Products and Services” even though the term “Aysa App” is sometimes used separately in these Terms of Use for purposes of emphasis) (including, without limitation, all associated copyright, patent, trademark, trade secret, and other intellectual property rights and all moral rights related thereto) are owned or licensed by VisualDx, and are protected by copyright, patent, trademark, trade secret, and trade dress laws, and various other intellectual property rights and unfair competition laws. Nothing on the Site or your use of the Site, the Site Content, or the Products and Services will be construed as conferring any license or other rights in or to the intellectual property or other proprietary rights of VisualDx, its affiliates, or any third party, whether by estoppel, implication, or otherwise. Except as expressly provided in these Terms of Use, you may not sell, resell, license, sublicense, copy, download, reproduce, republish, repurpose, modify, upload, post, publicly display, encode, translate, transmit, distribute, transfer (including, without limitation, “mirroring”), or otherwise commercially exploit or put to public use the Site, the Site Content, or the Products and Services, in whole or in part, in any way (including, without limitation, for use in performing vision science or machine learning or to train or test deep learning or artificial intelligence algorithms in any way), all of which are strictly prohibited by VisualDx without VisualDx’s prior written consent. You will not remove, modify, or obscure any copyright, patent, trademark, or other intellectual property notice included in or on the Site, the Site Content, or the Products and Services. You may use information on the Products and Services (such as data sheets, knowledge base articles, and similar materials) purposely made available by VisualDx for downloading from the Site, provided that you (a) not remove any proprietary notice language in all copies of such documents, (b) use such information only for your personal, non-commercial informational purpose and do not copy or post such information on any networked computer or broadcast it in any media, (c) make no modifications to any such information, and (d) not make any additional representations or warranties relating to such documents. VisualDx hereby reserves all rights not expressly granted to you under these Terms of Use.

2. Name, Logo, and Trademarks

The trademarks, logos, and service marks (collectively, the “Trademarks”) displayed on the Site, the Site Content, and the Products and Services are registered and unregistered Trademarks of VisualDx and others. Nothing contained on the Site or in these Terms of Use should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Site, the Site Content, or the Products and Services without the prior written consent of VisualDx or such third party that may own the Trademarks displayed. Your use of the Trademarks displayed on the Site, the Site Content, and the Products and Services, except as provided in these Terms of Use, is strictly prohibited. Furthermore, the names and Trademarks of the Site may not be used in any publicity or advertising, or in any way that expresses or implies endorsement, sponsorship, or affiliation with any entity, product, or service, without VisualDx’s prior written consent.

3. Your Use of Site

You may not use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Site, any Site Content, or any Products and Services, or in any way reproduce or circumvent the navigational structure or presentation of the Site, any Site Content, or any Products and Services, to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Site. VisualDx reserves the right to bar any such activity. You may not attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or networks connected to the Site or to any VisualDx server, or to any Site Content or Products and Services, by hacking, password “mining”, or any other illegitimate means. You may not probe, scan, or test the vulnerability of the Site or any network connected to the Site, nor breach the security or authentication measures on the Site or any network connected to the Site. You may not reverse look-up, trace, or seek to trace any information on any other user of or visitor to the Site, or any other customer of VisualDx, including, without limitation, any VisualDx account not owned by you, to its source, or exploit the Site or any product, service, or information made available or offered by VisualDx on or through the Site, in any way where the purpose is to reveal any information, including, without limitation, personal identification or information, other than your own information, as provided for by the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or VisualDx’s systems or networks, or any systems or networks connected to the Site or to VisualDx. You agree not to use any device, software, or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site, or with any other person’s use or enjoyment of the Site. You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to VisualDx on or through the Site or any Products and Services. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity. You may not use the Site, any Site Content, or Products and Services for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or other activity which infringes the rights of VisualDx or others. VisualDx reserves the right to take whatever action or actions it deems necessary or appropriate to enforce these Terms of Use or to establish, exercise, protect, or enforce any of its rights arising hereunder or otherwise.

4. Customer Content

(a) Key Definitions. The “Customer Content” means the images, illustrations, text, data, databases, data structures and relationships, designs, documentation, and materials (including, without limitation, photographic images depicting various pathological and healthy conditions (the “Images”) and written descriptions of the pathological and healthy conditions depicted by each of the Images (the “Image Descriptions”)) that you upload, post, publish, submit, or transmit to the Site or the Aysa App. The “VisualDx Products” means any and all software, products, and services created, conceived, developed, or reduced to practice by VisualDx, either alone or jointly with others, using or incorporating the Customer Content in any manner whatsoever as permitted pursuant to the terms of the Customer Content License (as defined below). The “Other User Content” means the images, illustrations, text, data, databases, data structures and relationships, designs, documentation, and materials (including, without limitation, photographic images depicting various pathological and healthy conditions and written descriptions of the pathological and healthy conditions depicted by such images that any other user of the Site or the Aysa App other than you uploads, posts, publishes, submits, or transmits to the Software.

(b) Customer Content License. Customer hereby grants to VisualDx a non-exclusive, transferable, irrevocable, perpetual, fully paid and royalty free, sub-licensable (through several tiers), worldwide license to use, reproduce, view, communicate to the public by any means, distribute, redistribute, perform and display (publicly or otherwise), transmit, stream, broadcast, print, download, copy (whether onto hard disk or other media), translate, edit, modify, repurpose, manipulate, adapt, make, sell, offer to sell, transfer, license, lease, create derivative works from (the “Derivative Works”), and otherwise use and exploit the Customer Content in any manner and for any commercial or non-commercial purpose whatsoever (including, without limitation, for use in education, research, patient care, scholarly publications, and performing vision science and machine learning and to train and test deep learning and artificial intelligence algorithms) (the “Customer Content License”).

(c) Ownership of Directive Works and VisualDx Products. Notwithstanding anything in these Terms of Use to the contrary, VisualDx will be the sole and exclusive owner of all right, title, and interest in and to the Derivative Works and VisualDx Products (including, without limitation, all associated patent, copyright, trademark, trade secret, and other intellectual property rights and all moral rights related thereto) and Customer hereby irrevocably assigns to VisualDx without further compensation all right, title, and interest that Customer may have in and to the Derivative Works and VisualDx Products (including, without limitation, all associated patent, copyright, trademark, trade secret, and other intellectual property rights and all moral rights related thereto). Customer hereby waives any moral rights or other special rights that Customer may have or accrue in any Derivative Works or VisualDx Products. Without limiting the generality of the foregoing, VisualDx will have the right to register its copyright in and to the Derivative Works and VisualDx Products and put its copyright notice thereon. Except as otherwise provided by these Terms of Use, VisualDx does not claim any ownership rights in or to the Customer Content and nothing in these Terms of Use will be deemed to restrict any rights that Customer may have to use and exploit the Customer Content.

(d) Customer Representation, Warranties, and Covenants Related to Customer Content. Customer hereby acknowledges and agrees that Customer is solely responsible for the Customer Content and Customer’s compliance with all applicable laws related to Customer’s use of the Site and the Aysa App and Customer’s uploading, downloading, posting, publication, submission, or transmittal of the Customer Content to and from the Site or the Aysa App. Accordingly, Customer hereby represents and warrants to VisualDx that: (i) Customer is either the sole and exclusive owner of the Customer Content or has all rights, licenses, consents, and releases that are necessary to grant to VisualDx the Customer Content License and the rights in and to the Customer Content, as contemplated under these Terms of Use (including, without limitation, the consent of all individuals photographed in any Customer Content and their assignment of all right, title, and interest they may have in or to such Customer Content); and (ii) neither the Customer Content nor Customer’s uploading, downloading, posting, publication, submission, or transmittal of the Customer Content to or from the Site or the Aysa App or VisualDx’s use of the Customer Content (or any portion thereof) pursuant to the Customer Content License will (x) infringe, misappropriate, or violate any third party’s patent, copyright, trademark, trade secret, or other intellectual property rights or any moral rights related thereto, or rights of publicity or privacy or (y) result in the violation of any applicable law or regulation, including, without limitation, any applicable laws, rules, or regulations relating to personal health information, personal information and privacy, the Health Insurance Portability and Accountability Act (HIPAA), or any other applicable privacy law depending on your country or jurisdiction of access to the Site or the Aysa App (collectively, the “Privacy Laws”). Customer will remove all identifying information from the Customer Content (including, without limitation, taking reasonable efforts when appropriate to modify the Customer Content so as to reduce the likelihood that individuals photographed in the creation of any Customer Content will be identifiable).

(e) Survival. Section 4 of these Terms of Use will survive the expiration or termination of these Terms of Use for any reason whatsoever.

5. Protected Information and Legal Compliance

(a) Legal Obligations. Federal, state, and local laws, as well as ethical and professional licensing requirements impose certain obligations with respect to the protection of privacy and patient confidentiality that may limit the ability of physicians, healthcare providers, and persons acting on their behalf to make use of certain confidential patient information (“Protected Information”) and/or to transmit Protected Information to third parties without express consent.

(b) Compliance Representations and Warranties. Customer represents and warrants that Customer will, at all times, comply with all laws directly or indirectly applicable to Customer that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of Protected Information, and require all persons or entities under Customer’s direction or control to comply with such laws, including, without limitation, the Privacy Laws. Customer is at all times solely responsible for obtaining and maintaining all patient consents, if applicable, and all other legally necessary consents or permissions required or advisable to disclose, process, retrieve, transmit, and view the Protected Information that you transmit, store, or receive in connection with the Site, the Aysa App, or the Customer Content.

(c) VisualDx Disclaimer on Protected Information. VisualDx expressly does not assume any responsibility for Customer’s use or misuse of Protected Information or other information, whether intentional or inadvertent, that is transmitted, monitored, stored, or received while using the Site, the Aysa App, or Customer Content. VisualDx reserves the right to amend or delete any Customer Content (along with the right to terminate or suspend access to the Site, the Aysa App, or the Customer Content) that VisualDx determines, in its sole discretion, violates the above. VisualDx further does not assume any responsibility to make any determinations regarding Customer’s subsequent reporting or notification obligations arising from any use or misuse of Protected Information or other information, these determinations and Customer’s actions in response to such determinations remain Customer’s sole responsibility.

(d) Survival. Section 5 of these Terms of Use will survive the expiration or termination of these Terms of Use for any reason whatsoever.

6. Other Restrictions; Void Where Prohibited

You may not: (a) use the Site, the Site Content, or the Products and Services for other than their intended purposes; (b) use the Site, the Site Content, or the Products and Services for any marketing, selling, or other commercial uses; (c) use framing techniques to enclose any portion of the Site, any Site Content, or any Products and Services, including, without limitation, any images found on the Site or any text or the layout or design of any page or form contained on a page of the Site; (d) make any derivative uses of the Site, the Site Content, or the Products and Services; or (e) engage in any systematic collection or extraction of data from the Site, the Site Content, or the Products and Services, whether or not through the use of any data mining, robots, or similar data gathering or extraction methods. You may not modify, adapt, hack, reverse engineer, decompile, or disassemble the Site, the Site Content, or the Products and Services or their source code or object or executable code, or any part thereof, or cause or permit any third party to do so. None of the Site Content, the Products and Services, or underlying information or technology thereof may be downloaded, exported, or re-exported into any country to which the United States (“U.S.”) has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or located in or under the control of, any country subject to such export controls. Although the Site is accessible worldwide, not all features of the Site, Site Content, or Products and Services discussed, referenced, provided, or offered on or through the Site are available to all persons or entities or in all geographic locations, or appropriate or available for use outside the United States. VisualDx reserves the right to limit, in its sole discretion, the provision and quantity of any feature or Product and Service offered on or through the Site to any person, entity, or geographic area. Any offer for any feature or Product and Service made on the Site is void where prohibited. If you choose to access the Site from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.

7. Other Terms and Conditions; Products and Services

Additional terms and conditions may apply to specific portions or features of the Site (including, without limitation, contests, promotions, or other similar features), all of which terms and conditions are made a part of these Terms of Use by this reference. You agree to abide by such other terms and conditions (including, without limitation, where applicable representing that you are of sufficient legal age to use or participate in such portion or feature). If there is a conflict between these Terms of Use and the terms and conditions posted for or applicable to a specific portion or feature of the Site, the latter terms and conditions will control with respect to your use of that portion or feature of the Site. In addition, the Aysa App and the other Products and Services are governed by the Aysa End User License Agreement (the “Aysa App EULA”) and/or such other agreements or terms and conditions (the “Other Agreements”) provided by VisualDx to govern your purchase, license, and/or use of the Aysa App and such other Products and Services. These Terms of Use are subject to all of the terms and conditions set forth in the Aysa App EULA and Other Agreements, and do not alter, replace, or limit them in anyway. In the event of any conflict between these Terms of Use and the Aysa App EULA or Other Agreements, the Aysa App EULA or Other Agreements will control. By purchasing, licensing, and/or using the Aysa App or any other Products and Services, you acknowledge that you understand, agree to, and accept, without limitation or qualification, the Aysa App EULA or the Other Agreements pertaining to your purchase, license, or use of the Aysa App or any such other Products and Services without modification. VisualDx may make changes to the Aysa App or any other Products and Services, or to the applicable prices for the Aysa App or any other Products and Services, at any time, without notice. The materials on the Site with respect to the Aysa App or any other Products and Services may be out of date, and VisualDx makes no commitment to update the materials on the Site with respect to the Aysa App or such other Products and Services.

8. Accounts, Passwords, and Security

The Products and Services, the Site Content, and certain features of the Site may require you to open an account (including, without limitation, setting up a VisualDx username and password). You are entirely responsible for maintaining the confidentiality of the information you hold for your account, including, without limitation, your password, and for any and all activity that occurs under your account as a result of your failing to keep this information secure and confidential. You agree to notify VisualDx immediately of any unauthorized use of your account or password, or any other breach of security. You may be held liable for losses incurred by VisualDx or any other user of or visitor to the Site due to someone else using your VisualDx username, password, or account as a result of your failing to keep your account information secure and confidential. You may not use anyone else’s VisualDx username, password, or account at any time. VisualDx cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.

9. Your Representations

You represent that you are at least 18 years of age and have attained the age of majority in the state in which you reside, and any information or data that you submit to us in connection with your use of the Site, the Site Content, or the Products and Services is true, correct, and accurate in all respects. In the event that any such information or data changes, you will promptly contact us to advise us of the change and provide us with the updated information or data.

10. Links

While the Site, the Site Content, or the Products and Services may include links providing direct access to independent third-party websites not owned, operated, or controlled by VisualDx, VisualDx makes no representations or warranties whatsoever and takes no responsibility for the content or information contained on these websites or the products or services offered on or through these websites. Furthermore, VisualDx does not exert any editorial or other control over these websites. All such links provided on or in the Site, the Site Content, or the Products and Services are intended solely for the convenience of users of the Site, the Site Content, and the Products and Services and do not represent any endorsement, advertisement, or sponsorship of these websites or any products or services offered on or through such websites. Your linking to any of these websites is at your own risk.

11. Medical Disclaimer

THE SITE, THE SITE CONTENT, AND THE PRODUCTS AND SERVICES DO NOT PROVIDE MEDICAL ADVICE OR DIAGNOSE A PERSON’S HEALTH CONDITION. THEY DO NOT CREATE A DOCTOR-PATIENT RELATIONSHIP. IN ADDITION, THEY ARE NOT INTENDED TO REPLACE OR BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, JUDGMENT, DIAGNOSIS, OR TREATMENT. THE SITE, THE SITE CONTENT, AND THE PRODUCTS AND SERVICES ARE REFERENCE TOOLS THAT PROVIDE INITIAL COMPARATIVE INFORMATION FOR INFORMATIONAL PURPOSES ONLY AND ARE INTENDED TO BE ADJUNCTS TO TRADITIONAL MEDICAL INFORMATION SOURCES. THE PRACTICE OF MEDICINE IS A COMPLEX PROCESS THAT INVOLVES THE SYNTHESIS OF INFORMATION FROM A MULTIPLICITY OF SOURCES. THE INFORMATION PROVIDED BY THE SITE, THE SITE CONTENT, AND THE PRODUCTS AND SERVICES DELIVER INFORMATION SIMILAR TO THAT OF A TEXTBOOK AND ARE BUT ONE OF THE SOURCES THAT MAY BE USED IN ESTABLISHING A DIAGNOSIS. THE SITE, THE SITE CONTENT, THE PRODUCTS AND SERVICES, AND ANY INFORMATION PROVIDED THEREBY SHOULD NEVER BE SOLELY RELIED UPON AS A VERIFIED DIAGNOSIS OF A PERSON’S HEALTH CONDITION. VISUALDX ACCEPTS NO RESPONSIBILITY FOR THE CORRECTNESS OF ANY DIAGNOSIS MADE BY ANY PERSON OR ENTITY BASED IN WHOLE OR IN PART UPON THE SITE, THE SITE CONTENT, OR THE PRODUCTS AND SERVICES, THE USE THEREOF, OR ANY INFORMATION PROVIDED THEREBY. THE USE OF THE SITE, THE SITE CONTENT, AND THE PRODUCTS AND SERVICES AND RELIANCE ON ANY INFORMATION PROVIDED THEREBY IS SOLELY AT ONE’S OWN RISK. A PERSON SHOULD NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BASED ON THE SITE, THE SITE CONTENT, OR THE PRODUCTS AND SERVICES, THE USE THEREOF, OR ANY INFORMATION PROVIDED THEREBY. SUCH PERSON SHOULD PROMPTLY CONTACT HIS OR HER OWN HEALTH CARE PROVIDER REGARDING ANY MEDICAL CONDITIONS OR MEDICAL QUESTIONS THAT PERSON MAY HAVE.

12. No Warranty

YOUR USE OF THE SITE, THE SITE CONTENT, AND THE PRODUCTS AND SERVICES ARE AT YOUR OWN RISK. THE SITE, THE SITE CONTENT, AND THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED BY STATUTE, USAGE, CUSTOM OF TRADE, OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT). Without limiting the generality of the foregoing, VisualDx makes no representations or warranties regarding the following: (a) the accuracy, correctness, quality, reliability, completeness, security, availability, currentness, or timeliness of the Site, the Site Content, or the Products and Services or the use of or the results of the use of the Site, the Site Content, or the Products and Services; (b) the approval or compliance of the Site, the Site Content, or the Products and Services or any software tools available through the Site, the Site Content, or the Products and Services by any government or other entity; (c) that the Site, the Site Content, or the Products and Services are free of errors, omissions, or inaccuracies; or (d) that the Site, the Site Content, or the Products and Services are free of viruses, worms, trojan horses, or other harmful components that may infect your computer equipment or other property on account of your access to, use of, or browsing in the Site, the Site Content, or the Products and Services or your downloading of any materials, data, text, images, video, or audio from the Site, the Site Content, or the Products and Services. Furthermore, when using the Site, the Site Content, or the Products and Services, information will be transmitted over a medium that may be beyond the control and jurisdiction of VisualDx and its suppliers. Accordingly, VisualDx assumes no liability for or relating to the delay, failure, interruption, security, theft, or corruption of any data or other information transmitted in connection with your use of the Site, the Site Content, or the Products and Services. In addition, no information or assistance given by us, or our employees, agents, or independent contractors, to you, whether oral or written, will create any warranty, express or implied.

13. Limitation of Damages

(a) No Liability for Indirect Damages. IN NO EVENT WILL VISUALDX BE LIABLE TO YOU OR ANY PERSON OR ENTITY CLAIMING THROUGH YOU FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR OTHER SIMILAR DAMAGES RESULTING FROM, ARISING OUT OF, OR RELATED TO THESE TERMS OF USE, ANY ALLEGED OR ACTUAL BREACH OF THESE TERMS OF USE, THE SITE, THE SITE CONTENT, THE PRODUCTS AND SERVICES, OR THE USE OF, THE RESULTS OF THE USE OF, OR THE INABILITY TO USE THE SITE, THE SITE CONTENT, OR THE PRODUCTS AND SERVICES, WHETHER ARISING UNDER CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, ENTERPRISE LIABILITY, PRODUCT LIABILITY, ANY OTHER THEORY OF LIABILITY, OR OTHERWISE, AND WHETHER OR NOT VISUALDX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE OTHERWISE FORESEEABLE (INCLUDING, AS EXAMPLES OF SUCH DAMAGES, BUT NOT IN LIMITATION THEREOF, PERSONAL INJURY OR DEATH, LOSS OF USE, PRIVACY, BUSINESS INFORMATION, DATA, REVENUE, PROFITS, OR GOODWILL, DAMAGE TO BUSINESS OR BUSINESS RELATIONS, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR FACILITIES, ECONOMIC LOSSES, PROPERTY OR EQUIPMENT DAMAGE, OR ATTORNEYS’ FEES AND DISBURSEMENTS). THIS SECTION WILL SURVIVE THE EXPIRATION OR TERMINATION OF THESE TERMS OF USE FOR ANY REASON WHATSOEVER.

(b) Limited Liability for Direct Damages. WITHOUT LIMITING THE GENERALITY OF SECTION 13(A) ABOVE AND NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS OF USE OR OTHERWISE TO THE CONTRARY, VISUALDX’S MAXIMUM AGGREGATE LIABILITY, DIRECT OR OTHERWISE, TO YOU OR ANY PERSON OR ENTITY CLAIMING THROUGH YOU, IF ANY, RESULTING FROM, ARISING OUT OF, OR RELATED TO THESE TERMS OF USE, ANY ALLEGED OR ACTUAL BREACH OF THESE TERMS OF USE, THE SITE, THE SITE CONTENT, THE PRODUCTS AND SERVICES, OR THE USE OF, THE RESULTS OF THE USE OF, OR THE INABILITY TO USE THE SITE, THE SITE CONTENT, OR THE PRODUCTS AND SERVICES WILL NOT EXCEED THE GREATER OF (I) THE PURCHASE PRICE OR LICENSE FEES FOR ANY PRODUCTS AND SERVICES PAID BY YOU TO (AND ACTUALLY RECEIVED BY) VISUALDX IN THE 6 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OF LIABILITY AGAINST VISUALDX OR (II) US$10.00. THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH IN SECTION 13 OF THESE TERMS OF USE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN VISUALDX AND CUSTOMER. THIS SECTION WILL SURVIVE THE EXPIRATION OR TERMINATION OF THESE TERMS OF USE FOR ANY REASON WHATSOEVER.

14. Time Limit to Bring Claim

YOU HEREBY AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION THAT YOU OR ANY PERSON OR ENTITY CLAIMING THROUGH YOU, IF ANY, MAY HAVE AGAINST VISUALDX RESULTING FROM, ARISING OUT OF, OR RELATED TO THESE TERMS OF USE, ANY ALLEGED OR ACTUAL BREACH OF THESE TERMS OF USE, THE SITE, THE SITE CONTENT, THE PRODUCTS AND SERVICES, OR THE USE OF, THE RESULTS OF THE USE OF, OR THE INABILITY TO USE THE SITE, THE SITE CONTENT, OR THE PRODUCTS AND SERVICES MUST BE FILED AGAINST VISUALDX IN THE APPROPRIATE COURT OF LAW LOCATED IN MONROE COUNTY, NEW YORK WITHIN 1 YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM OR CAUSE OF ACTION WILL BE FOREVER BARRED. THIS SECTION WILL SURVIVE THE EXPIRATION OR TERMINATION OF THESE TERMS OF USE FOR ANY REASON WHATSOEVER.

15. Disclaimers, Exclusions, and Limitations

Please note that some jurisdictions may not allow the limitations, disclaimers, and exclusions set forth in Sections 12-14 above, so some of those limitations, disclaimers, and exclusions may not apply to you. As such, notwithstanding anything in these Terms of Use to the contrary, the limitations, disclaimers, and exclusions set forth in Sections 12-14 above apply to the maximum extent permitted by applicable law, and are not intended to deprive you of any mandatory protections provided to you under applicable law. You should check your local laws for any restrictions or limitations regarding the limitations, disclaimers, and exclusions set forth in Sections 12-14 above.

16. Indemnity

You will, at your sole expense, indemnify, defend, and hold harmless VisualDx and VisualDx’s officers, directors, managers, members, shareholders, agents, representatives, successors, and assigns (the “Indemnifiable Parties”) from and against any and all Losses (as defined below) resulting from, arising out of, or related to: (a) any breach of or any inaccurate, false, or fraudulent representation or warranty made by you in these Terms of Use; (b) any breach or default in the performance of any covenant or agreement made by you in these Terms of Use; (c) the use of, the results of the use of, or the inability to use the Site, the Site Content, or the Products and Services by you or any person or entity claiming through you; (d) any violation of the rights of any third party by you; or (e) any willful misconduct or unlawful or negligent acts or omissions by you. For purposes of this Section, “Losses” means any and all losses, damages, penalties, expenses, costs, court costs, professional fees (including, without limitation, reasonable attorneys’ fees and disbursements), interest, disbursements, judgments, liens, and liabilities of any kind or nature whatsoever (including, without limitation, claims for the injury to or the death of any person or the damage to any property (including, without limitation, loss of use thereof)). VisualDx reserves the right, at VisualDx’s own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with VisualDx in asserting any available defenses. This Section will survive the expiration or termination of these Terms of Use for any reason whatsoever.

17. Privacy Policy

The VisualDx Privacy Policy (which can be found at www.askaysa.com) applies to the use of the Site, the Site Content, and the Products and Services, and its terms are hereby made a part of these Terms of Use by this reference. By using the Site, the Site Content, or the Products and Services, you acknowledge that you have read the VisualDx Privacy Policy and agree to its terms. Additionally, by using the Site, the Site Content, or the Products and Services, you acknowledge and agree that internet transmissions are never completely private or secure. You understand that any message or information you send to the Site, the Site Content, or the Products and Services may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted.

18. Termination, Suspension, and Restriction of Site, Site Content, and Products and Services

VisualDx reserves the right, with or without notice, to limit, modify, suspend, terminate, or restrict operation of, access to, or use of the Site, the Site Content, or the Products and Services, in whole or in part, at any time for any reason. VisualDx may also delete or prevent access to or use of all information, materials, and files related to the Site, the Site Content, or the Products and Services. VisualDx will not be liable to you or any third party for any limitation, modification, suspension, termination, or restriction of the Site, the Site Content, or the Products and Services or the deletion or inaccessibility of any information, materials, and files related to the Site, the Site Content, or the Products and Services. In addition, VisualDx reserves the right, with or without notice, to delete or otherwise dispose of any information, materials, or files related to your use of the Site, the Site Content, or the Products and Services in their entirety at any time for any reason and not to store any such information, materials, or files. VisualDx will not be liable to you or any third party for any such deletion, disposal, or failure to store such information, materials, and files.

19. Changes to these Terms of Use

VisualDx reserves the right, at any time and without notice, to change, modify, add to, or delete portions of these Terms of Use, the Aysa App EULA, or the Other Agreements (including, without limitation, the fees and payment terms for the Products and Services), simply by posting such change to these Terms of Use, the Aysa App EULA, or the Other Agreements on the Site or in the application in which it appears. Any such change will be effective immediately upon such posting. It is your responsibility to regularly check the Site or such application to determine if there have been any changes to these Terms of Use, the Aysa App EULA, or the Other Agreements, and to review such changes. If VisualDx makes any changes to these Terms of Use, the Aysa App EULA, or the Other Agreements, VisualDx will indicate at the top of these Terms of Use, the Aysa App EULA, or the Other Agreements the date it was last revised. Your use of the Site or the Site Content or your purchase or use of any Products and Services prior to any such change to these Terms of Use, the Aysa App EULA, or the Other Agreements will continue to be governed by the version of these Terms of Use, the Aysa App EULA, or the Other Agreements in effect at the time of such prior purchase or use. However, your use (or continued use) of the Site or the Site Content or your purchase or use (or continued purchase or use) of any Products and Services after any such change constitutes your acceptance of the new Terms of Use, Aysa App EULA, or Other Agreements. If you do not agree to and accept, without limitation or qualification, all of the terms and conditions of these Terms of Use, the Aysa App EULA, or the Other Agreements (or any future versions thereof) without modification, do not use or access (or continue to use or access) the Site or the Site Content or purchase or use (or continue to purchase or use) the Products and Services. These Terms of Use may not be amended, changed, or modified by you, and no course of conduct between VisualDx and you or any other party will be deemed to modify any provision of these Terms of Use.

20. Force Majeure

Without limiting the generality of any other provision in these Terms of Use, VisualDx will not be liable to you for VisualDx’s failure to perform any of its obligations under these Terms of Use during any period in which its performance is delayed by circumstances beyond its reasonable control (including, without limitation, acts of God, strikes, walkouts, lockouts, freight embargo, riots, civil disturbance, acts of war, acts of terrorism, acts of a public enemy, laws, regulations, or other government proclamations, ordinances, or acts, quarantine, epidemics, unusually severe weather, power failures, earthquakes, floods, fires, explosions, or other catastrophes) or directly resulting from any failure by you to perform your obligations under these Terms of Use. If VisualDx claims force majeure, then it will be excused for non-performance for as long as its performance is so prevented, delayed, or hindered due to force majeure.

21. Miscellaneous

These Terms of Use will be governed by, and interpreted and construed in accordance with, the laws of the State of New York, one of the United States of America, without regard to the principles of conflict of laws, and will be binding on you in the United States and worldwide. Any suit or proceeding related to these Terms of Use will be commenced exclusively in the state or federal courts located in Monroe County, New York, and you irrevocably consent to the exclusive jurisdiction and venue of such courts. If you breach, default under, or fail to perform or observe any of your covenants or obligations under these Terms of Use, you will pay VisualDx for all costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursements, internal legal costs, court costs, expenses of investigation, and expert fees) incurred by VisualDx in connection with VisualDx’s enforcement of its rights under these Terms of Use or collection of any amount due VisualDx pursuant to these Terms of Use, whether or not suit is brought. The foregoing sentence will survive the expiration or termination of these Terms of Use for any reason whatsoever. If any provision of these Terms of Use is finally determined to be unenforceable, invalid, or ineffective in any action, suit, or proceeding, such provision will be automatically reformed and construed so as to be valid, operative, and enforceable to the maximum extent permitted by law or equity while preserving its original intent. The determination that any provision of these Terms of Use is unenforceable, invalid, or ineffective in any action, suit, or proceeding will not affect the enforceability of the remainder of these Terms of Use. Failure on the part of VisualDx to insist upon strict compliance with any of the terms, covenants, or conditions of these Terms of Use will not be deemed a waiver of such term, covenant, or condition, nor will any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. You will not assign these Terms of Use or any of your respective rights or obligations under these Terms of Use, whether voluntarily, involuntarily, by operation of law, or otherwise, without VisualDx’s prior written consent. Any proposed assignment in contravention of the foregoing sentence will be null and void. These Terms of Use are binding upon and will inure to the benefit of you and VisualDx and their respective legal representatives, heirs, executors, successors, and permitted assigns. These Terms of Use are intended solely for the benefit of you and VisualDx and do not create or grant any right in any other person or entity. The headings in these Terms of Use are inserted as a matter of convenience only and will not be used to interpret or construe any provision of these Terms of Use. Whenever the context may require, any pronoun used in these Terms of Use will include the corresponding masculine, feminine, or neuter forms and the singular of nouns, pronouns, and verbs will include the plural and vice versa. These Terms of Use will not be construed against VisualDx by reason of the fact that it was responsible for the drafting of these Terms of Use. For purposes of these Terms of Use, except as otherwise expressly provided or unless the context otherwise requires: (a) references in these Terms of Use to “Sections”, “paragraphs”, and other subdivisions without reference to a document are to designate Sections, paragraphs, and other subdivisions of these Terms of Use; (b) the words “herein”, “hereof”, “hereunder”, and other words of similar import refer to these Terms of Use as a whole and not to any particular provision; and (c) the terms “include” and “including” will mean without limitation by reason of enumeration. The rights and remedies set forth in these Terms of Use for VisualDx or otherwise conferred upon or reserved to VisualDx are cumulative and not exclusive of any other rights or remedies which VisualDx otherwise has or would have under these Terms of Use or otherwise, and may be exercised singularly, successively, or together at the sole discretion of VisualDx as often as occasion may arise or as may be deemed expedient. The provisions of these Terms of Use that by their terms or by their nature and content survive or are intended to survive the expiration or termination of these Terms of Use will so survive the expiration or termination of these Terms of Use for any reason whatsoever. These Terms of Use contain the entire agreement between you and VisualDx with respect to your use of the Site and supersedes all prior agreements, understandings, and communications, written or oral, relating to such use.