VisualDx License Agreement

End User Software License Agreement

VISUALDX INDIVIDUAL END USER LICENSE AGREEMENT – VERSION FEBRUARY 20, 2023

This VisualDx Individual End User License Agreement (this “Agreement”) is made and entered by and between Logical Images, Inc. d/b/a VisualDx, a New York corporation with an address at 302 North Goodman Street, Suite E200, Rochester, NY 14607 (“VisualDx”), and you (“Customer”, “you”, “your”, or “yourself”), a purchaser of a license for and/or user of the software hosted by VisualDx known as VisualDx (the “Software”). By purchasing a license for and/or using the Software, Customer acknowledges that Customer has received this Agreement and understands, agrees to, and accepts, without limitation or qualification, this Agreement and all of the following terms and conditions of this Agreement without modification:

GRANT OF LICENSE. Subject to the terms and conditions of this Agreement, VisualDx hereby grants to Customer a non-exclusive, non-transferable license to access and use the Software during the License Term (as defined below) for Customer's own individual clinical and educational use only (the “License”). Customer may not share the Software or access thereto with any other individual or entity. Notwithstanding anything in this Agreement to the contrary, Customer will not use the Software in any way that is unlawful or criminal, harms VisualDx, or breaches Customer's obligations under this Agreement or any other agreement by and between Customer and VisualDx. For purposes of this Agreement, “VisualDx Content” means the images, illustrations, text, data, databases, data structures and relationships, designs, documentation, materials, and other content that are contained in or are otherwise part of or make up the Software and the term “Software” as used in this Agreement includes, without limitation, the VisualDx Content even though the term “VisualDx Content” is sometimes used separately in this Agreement for purposes of emphasis.
LICENSE RESTRICTIONS.
1. Customer may only use the Software, the VisualDx Content, and any accompanying documentation made available by VisualDx to Customer related thereto as expressly provided in this Agreement. Customer may not sell, resell, license, sublicense, copy, modify, transfer, assign, loan, lease, distribute, or otherwise commercially exploit, make available to any other individual or entity, or put to public use the Software, the VisualDx Content, or any accompanying documentation made available by VisualDx to Customer related thereto, in whole or in part, in any way. Customer may not create derivative works of or based upon the Software, the VisualDx Content, or any accompanying documentation made available by VisualDx to Customer related thereto, or any part thereof. Customer may not modify, adapt, hack, reverse engineer, decompile, or disassemble the Software or the Software's source code or object or executable code, or any part thereof, or cause or permit any third party to do so. Without limiting the generality of the foregoing, VisualDx Content may not be copied, downloaded, reproduced, repurposed, distributed, sold, or otherwise commercially exploited, made available to any other individual or entity, or put to public use 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. Customer will not remove, modify, or obscure any copyright, patent, trademark, or other intellectual property notice included in or on the Software, the VisualDx Content, or any accompanying documentation made available by VisualDx to Customer related thereto.
2. Notwithstanding anything in this Agreement to the contrary, VisualDx hereby reserves all rights and licenses in and to the Software not expressly granted to Customer under this Agreement (including, without limitation, all modification rights, translation rights, and rental rights and rights to source code and object or executable code). Without limiting the generality of the foregoing sentence, VisualDx expressly reserves its exclusive right under all applicable copyright, patent, trademark, trade secret, and other intellectual property laws to distribute the Software by any means. Customer acknowledges that, subject to the license granted to Customer by VisualDx pursuant to this Agreement, all right, title, and interest in and to the Software (including, without limitation, all associated copyright, patent, trademark, trade secret, and other intellectual property rights and all moral rights related thereto) are owned by VisualDx or VisualDx's licensors and will be retained by VisualDx or VisualDx's licensors.
3. None of the Software or underlying information or technology 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.
MAINTENANCE; UPDATES. Any maintenance, updates, modifications, and enhancements made to the Software from time to time during the License Term will be governed by this Agreement, unless accompanied by separate terms.
LICENSE FEES; TAXES. As consideration for the License, Customer will pay VisualDx the license fees set by VisualDx for the License at the time Customer signed up for the License, as such license fees may be modified by VisualDx from time to time pursuant to the terms of this Agreement (the “License Fees”) in accordance with the payment terms set forth in this Agreement. All License Fees and other amounts payable by Customer to VisualDx pursuant to this Agreement will be paid in the lawful money of the United States of America. If Customer does not pay the License Fees or any other amount payable by Customer to VisualDx pursuant to this Agreement on or before their due date, VisualDx, at its sole discretion, may, without prejudice to any other rights it has, charge Customer a late fee of 1.5% of the past due amount per month or fraction thereof until such past due amount is paid in full, but in no event more than the maximum rate permitted by applicable law. All License Fees and other amounts payable by Customer to VisualDx pursuant to this Agreement are exclusive of all applicable federal, state, local, and foreign sales, use, value added, excise, and other similar taxes arising out of or in connection with this Agreement (excluding taxes based on VisualDx's net income) (collectively, “Sales Tax”). Except to the extent of any applicable and validated exemption, Customer will promptly pay VisualDx any Sales Tax owed within 30 days after receipt of an invoice from VisualDx for such Sales Tax.
LICENSE TERM; AUTO-RENEWAL; ONGOING/RECURRING PAYMENT PLAN. The term of this Agreement (and the License hereunder) will be for the license term selected by Customer at the time Customer signed up for the License (e.g., a monthly or annual license) (the “Initial License Term”), unless this Agreement is (a) earlier cancelled or terminated pursuant to the terms of this Agreement or (b) renewed pursuant to the terms of this Agreement (the “License Term”). At the end of the Initial License Term and any subsequent Renewal Period (as defined below), this Agreement (and the License hereunder) will automatically renew for additional periods equal to the Initial License Term or the immediately preceding Renewal Period (if any) (each a “Renewal Period”), unless this Agreement is cancelled by Customer or terminated by VisualDx pursuant to the terms of this Agreement. For purposes of this Agreement, Customer's “Billing Period” is the interval of time between each recurring billing date (e.g., monthly or annually) and corresponds to the term of Initial License Term and then each subsequent Renewal Period (if any). This Agreement includes Customer's enrollment into an ongoing/recurring payment plan for the License Fees. Payment for the License Fees will be charged to Customer's chosen payment method at confirmation of purchase of the License and at the start of every new Billing Period, unless this Agreement is cancelled by Customer or terminated by VisualDx pursuant to the terms of this Agreement. When Customer provides a payment method, VisualDx may attempt to verify the information Customer entered by processing an authorization hold. VisualDx does not charge Customer in connection with this authorization hold, but Customer's available balance or credit limit may be reduced. For purposes of this Agreement, a “day” or “date” begins at 12:00 a.m. Eastern time and ends at 11:59 p.m. Eastern time of that same calendar day. Where applicable, the License Fees may be prorated by VisualDx for any partial month of the License, at VisualDx's sole discretion. To see your next recurring billing date, log in to your VisualDx account and view your account details. You acknowledge that the timing of when you are billed may vary, including if your License began on a day not contained in a given month (e.g., if you have a monthly license and became a paying licensee on January 31, your payment method would be billed next on February 28), due to free trials and other promotional offers, gift card redemptions, credits applied, or changes to your License or payment method. VisualDx may also offer you the ability to pause your License for a specified period of time. If you do not cancel this Agreement before the end of the pause period, billing will resume automatically. VisualDx reserves the right to change the License Fees. In the event of a License Fee change, VisualDx will attempt to notify you in advance of the change by sending an email to the email address you have registered for your VisualDx account. If you do not wish to accept a License Fee change, you may cancel this Agreement (and the License hereunder) pursuant to the terms of this Agreement or as otherwise provided in the instructions included in that email. If you do not timely cancel this Agreement (and the License hereunder), this Agreement (and the License hereunder) will be renewed at the License Fee in effect at the time of the renewal, without any additional action by you, and you authorize VisualDx to charge your payment method for these amounts. VisualDx will not be able to notify you of any changes in applicable taxes. You are responsible for all third-party Internet access charges and taxes in connection with your use of the Software. Please check with your Internet provider for information on possible Internet data usage charges.
FREE TRIALS AND PROMOTIONS. This Agreement (and the License hereunder) may begin with a free trial. Availability of a free trial is not guaranteed and, if one is available, it is only available on the specified terms of the free trial. Eligibility for free trials may vary based on factors including the Software license type selected, how recently you redeemed a free trial, and whether the Software license type is part of a combined offering. Certain limitations may also exist with respect to combining free trials with any other offers. Your first License Fee payment will be charged to your chosen payment method immediately following the free trial (if any), unless you cancel this Agreement (and the License hereunder) pursuant to the terms of this Agreement prior to the end of your free trial. VisualDx provides notice of the terms of the free trial at the time you sign up for the License and you will not receive a separate notice that your free trial is about to end or has ended, or that your paid License has begun, unless required by law in particular jurisdictions or instances. VisualDx may also offer, at VisualDx's sole discretion, promotions (e.g., a promotional price, bundled license, device-specific offer, or gift card) subject to promotional terms disclosed when you signed up for the License or in other materials provided to you by VisualDx. VisualDx will begin billing the same payment method VisualDx otherwise has on-file for your License at the then-current, non-promotional License Fee amount after your promotion ends unless you cancel this Agreement (and the License hereunder) pursuant to the terms of this Agreement prior to the end of your promotion.
CUSTOMER CANCELLATION AND REFUND POLICY. You can cancel this Agreement (and the License hereunder) pursuant to the terms of this Agreement at any time before the end of your then current Billing Period, free trial, or promotion. Cancellation of this Agreement (and the License hereunder) will take effect at the end of your then current Billing Period unless otherwise disclosed. If you cancel this Agreement (and the License hereunder), you will continue to have access to the Software through the end of your then current Billing Period, unless your access to the Software is through a free trial, promotional code, or other credit, in which case cancellation may be effective immediately. If you modify your License to switch from one Software license type to another during your Billing Period, you may not have continued access to your original Software license type. You must cancel this Agreement prior to 11:59 p.m. Eastern time on the day before your next recurring billing date for your next Billing Period in order to avoid being charged for the next Billing Period. VisualDx will not issue you a refund or credit for the Billing Period during which you cancelled your License or any other partially used Billing Period, although (a) VisualDx may provide such a refund or credit on a case-by-case basis in VisualDx's sole and absolute discretion and (b) if you have an annual License where you are charged an annual License Fee on an annual Billing Period basis (but not if you have a monthly License where you are charged a monthly License Fee on a monthly Billing Period basis) and your annual License is automatically renewed pursuant to the terms of this Agreement for another year, you will have a 30-day grace period from the start date of your then current annual Billing Period that just automatically renewed to cancel this Agreement prior to 11:59 p.m. Eastern time on the day such 30-day grace period expires in order to receive a full refund of any License Fees charged to you for your then current annual Billing Period that just automatically renewed. To cancel this Agreement (and the License hereunder), log into your VisualDx account and follow the instructions on your account page. If you obtained your License via a third party, please visit our Help Center at www.visualdx.com for instructions on how to cancel.
PAYMENT DETAILS. VisualDx will keep your detailed payment information, such as credit card number, expiry date, and O/V (or equivalent), on file. You are responsible for keeping your payment details up-to-date by changing the details in your VisualDx account settings. Where your details change or are due to expire, VisualDx may obtain or receive from your payment provider updated payment details including your credit card number, expiry date, and O/V (or equivalent). This enables VisualDx to continue to provide you access to the Software. You authorize VisualDx to continue to charge your payment method using the updated information. In the event of a failed attempt to charge to your payment method (e.g., if your payment method has expired), VisualDx reserves the right to retry one or more times charging your payment method. If a payment is not successfully authorized due to expiration, insufficient funds, or otherwise, VisualDx may suspend or terminate this Agreement (and the License hereunder). You will remain responsible for any amounts due VisualDx pursuant to this Agreement that you fail to pay, including, without limitation, collection costs, bank overdraft fees, collection agency fees, reasonable attorneys' fees, arbitration costs, and court costs. You also agree that VisualDx may charge your payment method on file if you decide to restart your License.
TERMINATION BY VISUALDX. VisualDx may, at its option and sole discretion, terminate this Agreement and the License hereunder immediately or suspend Customer's access to the Software without notice to Customer if (a) Customer fails to pay when due any License Fees or other amounts that VisualDx is entitled to receive pursuant to this Agreement or (b) breaches, defaults under, or fails to perform or observe any of its representations, warranties, covenants, or obligations under this Agreement. In addition, VisualDx may terminate this Agreement for convenience by giving Customer 30 days prior written notice, and in the event of any such termination for convenience, VisualDx will refund to Customer any portion of the License Fees paid in advance by Customer prorated to the date of such termination in such manner as VisualDx, in its sole discretion, determines. Termination of this Agreement and the License hereunder or the suspension of Customer's access to the Software will be in addition to and not in lieu of any other legal or equitable remedies available to VisualDx under this Agreement or otherwise. All of VisualDx's rights and remedies set forth in this Agreement 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 this Agreement 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.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or in subparagraphs (c)(1) and (2) of the Commercial Computer Software -- Restricted Rights at 48 CFR 52.227-19, as applicable.
NON-DISCLOSURE; VISUALDX PRIVACY POLICY; VISUALDX WEBSITE TERMS OF USE. Customer will keep confidential any non-public information and know-how disclosed to Customer by VisualDx in any form or of any type, no matter the medium. Customer's obligation under this Section will survive the termination of this Agreement until such time as the information protected hereby is in the public domain. The VisualDx Privacy Policy (which can be found at www.VisualDx.com) applies to Customer's purchase of a license for and/or use of the Software, and its terms are hereby made a part of this Agreement by this reference. In the event of any conflict between the Privacy Policy and this Agreement, this Agreement will control. In addition, the VisualDx Website Terms of Use (which can be found at www.VisualDx.com) apply to Customer's purchase of a license for and/or use of the Software, and its terms are hereby made a part of this Agreement by this reference. In the event of any conflict between the VisualDx Website Terms of Use and this Agreement, this Agreement will control.
MEDICAL DISCLAIMER. THE SOFTWARE DOES NOT PROVIDE MEDICAL ADVICE OR DIAGNOSE A PERSON'S HEALTH CONDITION. IN ADDITION, IT IS NOT INTENDED TO REPLACE OR BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, JUDGMENT, DIAGNOSIS, OR TREATMENT. THE SOFTWARE IS A CLINICAL REFERENCE TOOL THAT PROVIDES INITIAL COMPARATIVE INFORMATION FOR INFORMATIONAL PURPOSES ONLY AND IS INTENDED TO BE AN ADJUNCT 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 SOFTWARE DELIVERS INFORMATION SIMILAR TO THAT OF A TEXTBOOK AND IS BUT ONE OF THE SOURCES THAT MAY BE USED IN ESTABLISHING A DIAGNOSIS FOR A PATIENT. THE SOFTWARE 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 SOFTWARE, THE USE THEREOF, OR ANY INFORMATION PROVIDED THEREBY. THE USE OF THE SOFTWARE AND RELIANCE ON ANY INFORMATION PROVIDED THEREBY IS SOLELY AT ONE'S OWN RISK. IF A NON-HEALTHCARE PROVIDER IS USING THE SOFTWARE FOR HIS OR HER OWN PERSONAL USE, SUCH PERSON SHOULD NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BASED ON THE SOFTWARE, 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.
NO WARRANTY. CUSTOMER'S USE OF THE SOFTWARE IS AT CUSTOMER'S OWN RISK. THE SOFTWARE AND ANY OTHER PRODUCTS OR SERVICES PROVIDED BY VISUALDX PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT 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 Software or the use of or the results of the use of the Software; (b) the approval or compliance of the Software or any software tools available through the Software by any government or other entity; (c) that the Software is free of errors, omissions, or inaccuracies; or (d) that the Software is 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 Software or your downloading of any materials, data text, images, video, or audio from the Software. Furthermore, when using the Software, 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 Customer's use of the Software. In addition, no information or assistance given by VisualDx, or VisualDx's employees, agents, or independent contractors, to Customer, whether oral or written, will create any warranty, express or implied.
LIMITATION OF LIABILITY AND DAMAGES.
1. No Liability for Indirect Damages. IN NO EVENT WILL VISUALDX BE LIABLE TO CUSTOMER OR ANY PERSON OR ENTITY CLAIMING THROUGH CUSTOMER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR OTHER SIMILAR DAMAGES RESULTING FROM, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, ANY ALLEGED OR ACTUAL BREACH OF THIS AGREEMENT, THE SOFTWARE, OR THE USE OF, THE RESULTS OF THE USE OF, OR THE INABILITY TO USE THE SOFTWARE, 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 TERMINATION OF THIS AGREEMENT.
2. Limited Liability for Direct Damages. WITHOUT LIMITING THE GENERALITY OF SECTION 14(A) ABOVE AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE TO THE CONTRARY, VISUALDX'S MAXIMUM AGGREGATE LIABILITY, DIRECT OR OTHERWISE, TO CUSTOMER OR ANY PERSON OR ENTITY CLAIMING THROUGH CUSTOMER, IF ANY, RESULTING FROM, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, ANY ALLEGED OR ACTUAL BREACH OF THIS AGREEMENT, THE SOFTWARE, OR THE USE OF, THE RESULTS OF THE USE OF, OR THE INABILITY TO USE THE SOFTWARE WILL NOT EXCEED THE LICENSE FEES PAID BY CUSTOMER TO (AND ACTUALLY RECEIVED BY) VISUALDX IN THE 6 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO CUSTOMER'S CLAIM OF LIABILITY AGAINST VISUALDX. THIS SECTION WILL SURVIVE THE TERMINATION OF THIS AGREEMENT.
TIME LIMIT TO BRING CLAIM. CUSTOMER HEREBY AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION THAT CUSTOMER OR ANY PERSON OR ENTITY CLAIMING THROUGH CUSTOMER, IF ANY, MAY HAVE AGAINST VISUALDX RESULTING FROM, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, ANY ALLEGED OR ACTUAL BREACH OF THIS AGREEMENT, THE SOFTWARE, OR THE USE OF, THE RESULTS OF THE USE OF, OR THE INABILITY TO USE THE SOFTWARE 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 TERMINATION OF THIS AGREEMENT.
NOTICE REGARDING LIMITATIONS, DISCLAIMERS, AND EXCLUSIONS. Please note that some jurisdictions may not allow the limitations, disclaimers, and exclusions set forth in Sections 13-15 above, so some of those limitations, disclaimers, and exclusions may not apply to Customer. As such, notwithstanding anything in this Agreement to the contrary, the limitations, disclaimers, and exclusions set forth in Sections 13-15 above apply to the maximum extent permitted by applicable law, and are not intended to deprive Customer of any mandatory protections provided to Customer under applicable law. Customer should check Customer's local laws for any restrictions or limitations regarding the limitations, disclaimers, and exclusions set forth in Sections 13-15 above.
CUSTOMER REPRESENTATIONS AND WARRANTIES. Customer represents and warrants to VisualDx, as of the date of this Agreement and during the License Term, that: (a) Customer is at least 18 years of age and has attained the age of majority in the state in which Customer resides; (b) all information and data that Customer has submitted or otherwise given, or submits or otherwise gives in the future, to VisualDx in connection with or related to this Agreement, the Software, the License, signing up for or renewing the License, any other agreements, licenses, or subscriptions entered into by and between Customer and VisualDx, or Customer's use of the Software or any other products or services of VisualDx is true, correct, and complete in all material respects (in the event that any such information and data changes, Customer will promptly contact VisualDx to advise VisualDx of the change and provide VisualDx with the updated information and data); (c) this Agreement is a valid and binding obligation of Customer and is enforceable against Customer in accordance with its terms; and (d) Customer is not a party to or subject to any agreement, judgment, decree, or order that would directly or indirectly affect its ability to enter into or perform its obligations under this Agreement. This Section will survive the termination of this Agreement.
INDEMNIFICATION. Customer will, at Customer's 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 Customer in this Agreement; (b) any breach or default in the performance of any covenant or agreement made by Customer in this Agreement; (c) the use of, the results of the use of, or the inability to use the Software by Customer or any person or entity claiming through Customer; (d) any violation of the rights of any third party by Customer; or (e) any willful misconduct or unlawful or negligent acts or omissions by Customer. The Indemnifiable Parties will provide reasonable notice to Customer of any claim asserted by a third party against the Indemnifiable Parties that may give rise to a claim for indemnification pursuant to this Section and Customer will take up the defense of such claim. The Indemnifiable Parties will provide reasonable assistance to Customer as reasonably necessary for Customer to defend any such third party claim, provided that the Indemnifiable Parties will have the right to fully participate in such defense at their own expense. Customer will have the right to settle the matter upon written consent of the Indemnifiable Parties, which consent will not be unreasonably withheld. For purposes of this Section, “Losses” means any and all claims, suits, proceedings, 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 Customer, in which event Customer will cooperate with VisualDx in asserting any available defenses. This Section will survive the termination of this Agreement.
CHANGES TO THIS AGREEMENT. VisualDx reserves the right, at any time and without notice, to change, modify, add to, or delete portions of this Agreement (including, without limitation, the fees and payment terms for the Software), simply by posting such change to this Agreement on VisualDx's website or in the application in which it appears. Any such change will be effective immediately upon such posting. It is Customer's responsibility to regularly check VisualDx's website or such application to determine if there have been any changes to this Agreement and to review such changes. If VisualDx makes any changes to this Agreement, VisualDx will indicate at the top of this Agreement the date this Agreement was last revised. A license purchased for and/or use of the Software prior to any such change to this Agreement will continue to be governed by the version of this Agreement in effect at the time of such prior purchase or use. However, Customer's purchase of a license for and/or use (or continued purchase or use) of the Software after any such change constitutes Customer's acceptance of the new Agreement. If Customer does not agree to and accept, without limitation or qualification, all of the terms and conditions of this Agreement (or any future version thereof) without modification, do not purchase a license for and/or use (or continue to purchase or use) the Software. This Agreement may not be amended, changed, or modified by Customer and no course of conduct between VisualDx and Customer or any other party will be deemed to modify any provision of this Agreement.
GENERAL.
1. This Agreement 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 the parties to this Agreement in the United States and worldwide. Any suit or proceeding related to this Agreement will be commenced exclusively in the state or federal courts located in Monroe County, New York, and each party to this Agreement irrevocably consents to the exclusive jurisdiction and venue of such courts.
2. If Customer breaches, defaults under, or fails to perform or observe any of Customer's covenants or obligations under this Agreement, Customer 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 this Agreement or collection of any amount due VisualDx pursuant to this Agreement, whether or not suit is brought. This Section will survive the termination of this Agreement.
3. Any notice, consent, demand, or other communication required or permitted under this Agreement will be in writing, addressed to the party that the same is directed using the address set forth in this Agreement or with respect to Customer's address, Customer's most recent address on file with VisualDx (or such other address as the party may designate by like notice from time to time), and deemed delivered to and received by the party that the same is directed for all purposes as of the date that such notice is: (i) with respect to Customer only, it is actually received by Customer, if sent by electronic mail; (ii) it is actually received by the Party that the same is directed, if delivered personally; (iii) 1 business day after it was sent, if sent by reputable overnight courier service; or (iv) 3 business days after it is deposited in a regularly maintained receptacle for the deposit of U.S. mail, if sent by registered or certified U.S. mail, postage and charges prepaid.
4. If any provision of this Agreement 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 this Agreement is unenforceable, invalid, or ineffective in any action, suit, or proceeding will not affect the enforceability of the remainder of this Agreement.
5. Failure on the part of any party to this Agreement to insist upon strict compliance with any of the terms, covenants, or conditions of this Agreement will not be deemed a waiver of such term, covenant, or condition, nor will any waiver or relinquishment of any right or power under this Agreement at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times.
6. Customer will not assign this Agreement or any of its respective rights or obligations under this Agreement, whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of VisualDx. Any proposed assignment in contravention of this Section will be null and void. This Agreement is binding upon and will inure to the benefit of the parties to this Agreement and their respective legal representatives, heirs, executors, successors, and permitted assigns.
7. Customer agrees that in the event there are discrepancies between the terms of this Agreement and the terms of any Customer purchase order or similar document related to the purchase of the License, the terms of this Agreement will prevail.
8. VisualDx will not be liable to Customer for VisualDx's failure to perform any of its obligations under this Agreement (other than the payment of any amount due Customer pursuant to this Agreement) 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 of Customer to perform its obligations under this Agreement. 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.
9. The headings in this Agreement are inserted as a matter of convenience only and will not be used to interpret or construe any provision of this Agreement.
10. VisualDx and Customer acknowledge that the relationship of VisualDx and Customer is that of an independent contractor in connection with the subject matter of this Agreement. In no event will either party to this Agreement be deemed a joint venture party, partner, employee, or agent of the other party by virtue of this Agreement.
11. This Agreement is intended solely for the benefit of the parties to this Agreement and does not create or grant any right in a person or entity who is not party to this Agreement.
12. Whenever the context may require, any pronoun used in this Agreement will include the corresponding masculine, feminine, or neutral forms and the singular of nouns, pronouns, and verbs will include the plural and vice versa. This Agreement will not be construed against any party to this Agreement by reason of the fact that the party may be responsible for the drafting of this Agreement or any provision hereof. For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (i) references in this Agreement to “Sections”, “paragraphs”, and other subdivisions without reference to a document are to designate Sections, paragraphs, and other subdivisions of this Agreement; (ii) the words “herein”, “hereof”, “hereunder”, and other words of similar import refer to this Agreement as a whole and not to any particular provision; and (iii) the terms “include” and “including” will mean without limitation by reason of enumeration.
13. The rights and remedies set forth in this Agreement 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 this Agreement 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.
14. This Agreement contains the entire agreement of the parties to this Agreement with respect to the subject matter hereof and supersedes all prior agreements, understandings, and communications, written or oral, relating thereto.