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Terms and Conditions

EYETHENA, INC.

TERMS OF SERVICE – END USER

Last Updated: December 19, 2023

Contractual Relationship. PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND EYETHENA. DOWNLOADING THE PDT, COMPLETING OUR REGISTRATION PROCESS, OR OTHERWISE ACCESSING OR USING ALL OR ANY PART OF THE EYETHENA

SERVICE WILL CONSTITUTE ACCEPTANCE OF, AND CREATE A LEGALLY ENFORCEABLE CONTRACT UNDER WHICH YOU HEREBY AGREE TO BE BOUND BY ALL OF THESE TERMS OF SERVICE, WITHOUT MODIFICATION.

PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND EYETHENA CAN BE BROUGHT, INCLUDING THE ARBITRATION AGREEMENT. PLEASE REVIEW THE ARBITRATION AGREEMENT BELOW CAREFULLY, AS IT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH EYETHENA ON AN INDIVIDUAL BASIS AND, WITH LIMITED EXCEPTIONS, THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

Certain Defined Terms.

As used in these terms and conditions (Terms of Service):

Eyethena is Eyethena, Inc., and its affiliates; Clinical Partners are hospitals, clinics, practices or other medical groups or healthcare systems that have contracted with Eyethena to permit use of the Eyethena Service (as defined below) by their respective Health Care Providers and End Users; Health Care Providers are physicians, counsellors, practitioners, patient advocates, coaches or other individuals who (as employees of or contractors to a Clinical Partner) provide healthcare or related services to End Users; Service Partners are service providers that have contracted with Eyethena to facilitate the use of the Eyethena Service by their respective Health Care Providers and End Users; End Users are individual patients of the Clinical Partner who receive medical treatment or other Healthcare Services (as defined below) from one or more Health Care Providers, or individuals who are properly authorized representatives of any such End User, and who use the Eyethena Service; and Healthcare Services are the furnishing of medicine, medical or surgical treatment, clinical and therapeutic services, the dispensing of drugs or medical devices or any other clinical services provided for treatment or prevention of disease, medical condition or disorder.

Acceptance.

Eyethena owns and operates the website www.Eyethena.io (the Site). Eyethena and its partners also develop, operate, distribute and sell prescription digital therapeutics (PDTs) authorized by U.S. Food & Drug Administration (FDA), which is an application for mobile devices. The Site and PDTs (which together describe the digital prescription therapies designed to improve health outcomes), and the data collection, Feedback collection, Analytics collection, storage, analysis and reporting tools, functions and services, which are provided at the Site and/or via the PDT are collectively referred to as the Eyethena Service. The Eyethena Service is offered and provided subject to acceptance without modification of these Terms of Service. The Terms of Service shall be deemed to include all other operating rules, conditions, policies and procedures that are referred to herein or that may otherwise be published by Eyethena, from time to time, at the Site or via the PDT (collectively, Policies), including without limitation, Eyethena’s Privacy Policy (accessible from the app menu) as well as the Directions for Use for End Users. By using the Eyethena Service, you acknowledge you have received this documentation.

IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF SERVICE, OR IF YOU ARE NOT ELIGIBLE, AUTHORIZED, OR HAVE THE CAPACITY TO ENTER INTO THIS AGREEMENT, THEN DO NOT REGISTER FOR, DOWNLOAD, ACCESS OR USE THE EYETHENA SERVICE.

IT IS THE SOLE RESPONSIBILITY OF YOUR HEALTH CARE PROVIDER TO DETERMINE THE APPROPRIATENESS OF YOUR STARTING AND OF YOUR CONTINUING USE OF THE EYETHENA SERVICE.

THE EYETHENA SERVICE INCLUDING THE PDT DOES NOT REPRESENT A SUBSTITUTION FOR YOUR MEDICATION. YOU SHOULD CONSULT WITH YOUR HEALTH CARE PROVIDER ABOUT YOUR MEDICATION, MEDICAL CONDITION, AND ANY OTHER MEDICAL QUESTIONS.

HEALTH CARE PROVIDERS AND CLINICAL PARTNERS ARE RESPONSIBLE FOR OBTAINING ANY AND ALL NECESSARY CONSENTS FOR THE PROVISION OF ALL HEALTHCARE SERVICES, AND FOR THE COLLECTION AND DISCLOSURE OF YOUR PERSONALLY IDENTIFIABLE INFORMATION AND PROTECTED HEALTH INFORMATION.

THE EYETHENA SERVICE MAY INCLUDE A FREE TEXT FUNCTION THAT ENABLES YOU TO INPUT INFORMATION INTO THE PDT. THE EYETHENA SERVICE IS NOT A MONITORING TOOL OR SERVICE. THE EYETHENA SERVICE, THIS SITE, AND ANY INFORMATION ENTERED INTO THE PDT ARE NOT ACTIVELY MONITORED BY EYETHENA, YOUR HEALTH CARE PROVIDER, ANY THERAPIST, LICENSED MEDICAL PROFESSIONAL, OR SUICIDE PREVENTION PERSONNEL. EYETHENA IS NOT RESPONSIBLE NOR LIABLE FOR VIEWING OR ADDRESSING ANY INFORMATION OR USE OF THE PDT OR THE SITE. FURTHER, THE PDT AND THE SITE ARE NOT COMMUNICATION TOOLS WITH YOUR HEALTH CARE PROVIDER. THE EYETHENA SERVICE DOES NOT INCLUDE FEATURES THAT CAN SEND ALERTS OR WARNINGS TO YOUR HEALTH CARE PROVIDER. IF YOU ARE EXPERIENCING A NONEMERGENT MEDICAL CONDITION OR WANT TO DISCUSS ANYTHING WITH YOUR HEALTH CARE PROVIDER, YOU MUST CONTACT YOUR HEALTH CARE PROVIDER DIRECTLY. DO NOT USE THE EYETHENA SERVICE TO REPORT A MEDICAL EMERGENCY OR IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY. IN THE EVENT OF A MEDICAL EMERGENCY,. YOU ACKNOWLEDGE AND AGREE THAT EYETHENA IS NOT RESPONSIBLE FOR AND EXPRESSLY DISCLAIMS ALL LIABILITY FOR THE ACTIONS OR INACTIONS OF ANY END USER.

Eligibility.

The Eyethena Service is intended by Eyethena to be made available only to individuals who (a) are at least 18 years old; and (b) have been specifically identified by a Clinical Partner or Health Care Provider for onboarding and use of the Eyethena Service as indicated by the PDT’s FDA-authorized indication as identified in the Directions for Use, which are incorporated into the PDT.

If you do not qualify for eligibility, then you are prohibited from downloading, accessing, using and registering for the Eyethena Service. Eyethena will not collect personally identifiable information from any person who is actually known to Eyethena to be under the age of 13.

If Eyethena becomes aware that person under 13 has provided personally identifiable information, Eyethena will take steps to remove such information and terminate that individual’s account, access and use of the Eyethena Service. The Clinical Partner, not Eyethena, is responsible for establishing the criteria and determining which of its Health Care Providers and End Users will be (and continue to be) eligible to use the Eyethena Service.

The Clinical Partner is also solely responsible for determining whether the Eyethena Service will be (and continues to be) clinically appropriate and safe for each End User. Eyethena will comply with any valid instruction from a Clinical Partner to discontinue offering the Eyethena Service to any of its Health Care Providers or End Users. Eyethena will comply with any instruction from a Clinical Partner or Health Care Provider to change, modify, update or delete End User information in the possession of Eyethena, consistent with the functionalities of the Eyethena Service. In addition, Eyethena may, at the instruction or in the sole discretion of the Clinical Partner, refuse to offer or continue offering the Eyethena Service to any individual.

Assignment of Benefits and Consent to Submit Insurance Claims.

By using the Eyethena Service, you assign and convey directly to Eyethena or an Authorized Distributor (defined below), as your designated authorized representative, all medical benefits and/or insurance reimbursement, if any, otherwise payable to you for the Eyethena Service. Except as may be otherwise agreed between you and Eyethena or an Authorized Distributor, you understand that you are financially responsible for all charges not covered by applicable insurance or benefit payments. You authorize Eyethena or an Authorized Distributor to release all medical information necessary to process your claims. Further, you authorize your plan administrator fiduciary, or insurer to release to Eyethena or an Authorized Distributor any and all health plan documents, summary benefit description, insurance policy, and/or settlement information upon written request from Eyethena, its agents, or an Authorized Distributor in order to claim such medical benefits.

You intend by this assignment and designation of Eyethena or an Authorized Distributor as your authorized representative to convey to Eyethena or an Authorized Distributor all of your rights to claim the medical benefits related to the Eyethena Service, including rights to any settlement, insurance or applicable legal or administrative remedies (including damages arising from ERISA breach of fiduciary duty claims). You give Eyethena or an Authorized Distributor the right: (1) to obtain information regarding the claim to the same extent as you; (2) to submit documents; (3) to make statements about facts or law; (4) to make any request including providing or receiving notice of appeal proceedings; and (5) to participate in any administrative and judicial actions and pursue claims or chose in action or right against any liable party, insurance company, employee benefit plan, health care benefit plan, or plan administrator.

Registration.

The Eyethena Service is available with a prescription, following the direction and under the supervision of your Health Care Provider and subject to registration and access control. Although it may be possible to visit the Site and/or download the PDT without registering, you will not be able to access or use any valuable aspect of the Eyethena Service. To complete your application for registration, you need to be specifically identified by your Clinical Partner or Service Partner, who will provide you with the necessary link to the mobile application, username and access code, and any other required credentials.

The Eyethena Service may be accessed: by visiting the Site directly; or by using the PDT which is downloaded from Eyethena (or a Channel Partner), which then communicates with Eyethena’swebservers. Channel Partner means any distribution platform operator or other third party who is authorized to make the PDT available for distribution pursuant to arrangements with Eyethena. Business Partners refers to and includes all Clinical Partners and Channel Partners.

Regardless of how you access the Eyethena Service, to ensure the integrity of the Eyethena Service, you must complete the account registration process and provide Eyethena with current, complete and accurate information, as more specifically required by then-current registration procedures and operational prompts. Your registration information will be provided to Eyethena by the Clinical Partner or Service Partner; however, you will need to review and confirm accuracy of such information, and to maintain the complete or correct nature of your information.

For example, your Health Care Provider, Clinical Partner or Service Partner may be required to provide the following information about you in order to establish your account and for you to be able to register for and use the Eyethena Service: name, address, telephone number, e-mail address, username, password, and certain preferences and permissions. You are required to work with your Health Care Provider to maintain accurate information on the Eyethena Service. Further, to ensure that it is always complete and accurate, your Health Care Provider may be required to update this information from time to time. You will be able to change your password if necessary.

Eyethena may refuse to accept your application to register for the Eyethena Service, in its sole discretion. Upon acceptance, Eyethena will activate the access credentials for your account. You alone are responsible for maintaining the confidentiality of your access credentials and other account information, and you will be solely liable for any and all activities under your account. This requires, among other prudent security practices, ensuring strong credentials to open your mobile device and updating your phone or tablet operating system as recommended by the vendor. You hereby agree to notify your Health Care Provider and Eyethena immediately of any unauthorized use or suspected unauthorized use of your End User Account or any other breach of security or suspected breach of security related to the Eyethena Service.

Updates.

Eyethena reserves the right, at its sole discretion, to update, modify or replace the Terms of Service (including any Policy), in whole or in part, at any time. Change notices may be communicated by postings at the Site, via the PDT, e-mail or otherwise. In any case, you should periodically check the Policies and other Terms of Service for changes. Unless Eyethena says otherwise in its notice, the amended Terms of Service will be effective immediately and your continued access or use of the Eyethena Service following any change to the Terms of Service means that you have accepted those changes. The Terms of Service may not otherwise be amended, as they apply to you, except by a written agreement executed by you and Eyethena.

Eyethena may modify, suspend or terminate the Eyethena Service (including without limitation, the Site or the PDT), in whole or in part, at any time in its sole discretion.

Medical Disclaimers.

The Eyethena Service is intended only as a supplement to Healthcare Services provided by your Health Care Provider, which can be used to assist you in managing your medical condition. Eyethena does not provide any stand-alone therapeutic, psychological or medical services to End Users. As a result of its intermediary role between End Users and Health Care Providers, Eyethena has no direct control over the appropriateness, accuracy, quality, timeliness, scope, price or risks of or associated with any provision of Healthcare Services, excluding for the avoidance of doubt, the Eyethena Service. Being enrolled in the Eyethena Service is not a substitute for the care you receive from your Health Care Provider; therefore, you should continue to receive usual care from your Health Care Provider. If you have any questions regarding treatment, medications, or diagnosis, you should contact your Health Care Provider. Your refusal to accept these Terms of Service or to participate in the Eyethena Service will not affect your ability to obtain services from your Health Care Provider.

You hereby agree to release Eyethena from any and all claims, demands, damages and liabilities, of any type and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the provision of Healthcare Services by your Clinical Partner or Health Care Provider.

Eyethena does not recommend or endorse any specific Clinical Partner, Health Care Provider or Healthcare Service.

Privacy and Security of Your Information.

 Eyethena’s current Privacy Policy is accessible from the app menu. It is important that you read and understand the Privacy Policy, especially because the nature of the Eyethena Service necessarily involves the collection and use of personally identifiable information (PII) and likely involves the collection and use of protected health information (PHI). Personal Data refers to and includes PII and PHI. The most current Privacy Policy will apply to any and all use of the Site, the PDT, and other aspects of the Eyethena Service. Eyethena will not intentionally edit, modify, delete or disclose the contents of your Personal Data in connection with the Eyethena Service unless (a) reasonably necessary for Eyethena (or its service providers) to operate the Eyethena Service, (b) to communicate with End Users, Health Care Providers and Clinical Partners, (c) otherwise permitted under the Privacy Policy or elsewhere in the Terms of Service, (d) Eyethena reasonably believes that such action is necessary to conform or comply with any authorized legal, regulatory, law enforcement or similar requirement or investigation, (e) to protect or defend the rights or property of Eyethena or any third party or to enforce the Terms of Service, or (f) otherwise authorized by you.

Electronic Communications.

Eyethena (or the Service Partner) may need to contact you about your use of the Site and/or the PDT. These communications are part of the Eyethena Service, and you may not opt out from receiving them while using the Eyethena Service.

Some of these communications may be offered via SMS text message (the Text Message Service). If you would like to take advantage of the Text Message Service, you will be required to opt in. Neither Eyethena nor the Service Partner will charge you for the Text Message Service. However, your mobile carrier may charge you message and data rates in accordance with your wireless customer agreement, and you will be responsible for any such charges.

Eyethena and its contracted third parties (acting on Eyethena’s behalf) may contact you to provide you with helpful information about treatments, services, and for marketing purposes, along with information regarding your participation in any user experience research or other Eyethena offerings. You understand that Eyethena will not sell or transfer your name to any other third party for its own marketing use. You can opt out from receiving these other communications from Eyethena by contacting admin@eyethena.io

Analytics.

Analytics means de-identified information relating to your browser or device type, the time and date you use the Eyethena Service, operating system, identification of Site or the PDT page views, use of particular Service features, geographic location and other statistical information relating to your use of the PDT or the Eyethena Service but which does not identify you. The Eyethena Service collects, stores, processes, analyzes and produces Analytics. Accordingly, whenever you interact with the Eyethena Service, a variety of technologies are employed to automatically or passively collect Analytics. Eyethena uses Analytics to develop, improve, extend and test the Eyethena Service (and underlying technology platforms) and to market and promote Eyethena and the Eyethena Service. Eyethena discloses, distributes and transmits Analytics to Clinical Partners and Service Partners for their use, which includes, but is not limited to, a review of the functionality and effectiveness of treatment including this and other prescriptions provided by Health Care Providers.

End User-Generated Content.

The Eyethena Service currently provides functionality that permits (i) Health Care Providers to include information specific to an End User’s condition and treatment, and (ii) End Users to include information specific to such End User’s condition. At this time, the Eyethena Service does not permit End Users to upload or post content or other information they think may be of interest to other End Users, or that permit End Users to cause or control messaging or interaction with other End Users. End

User Rules and Conduct.

If you elect to use the Eyethena Service or register for an account with Eyethena (End User Account), you are responsible for maintaining the confidentiality of your account login information and the security of your mobile device and are fully responsible for all activities that occur under your account. You are solely responsible for all content and material that you provide to the Eyethena Service. You hereby agree that Eyethena will not be held liable for any harm, loss or damage incurred as the result of any such activities or from your failure to comply with the above requirements.

EYETHENA, IN COOPERATION WITH AND AT THE INSTRUCTION OF THE CLINICAL PARTNER, RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO HAVE OUR SYSTEMS TRACK ANY END USER’S USE OF THE EYETHENA SERVICE, INCLUDING AN END USER’S REGISTRATION ATTEMPTS. ACCORDINGLY, EYETHENA ALSO RESERVES THE RIGHT TO DISABLE ANY END USER’S USE OF OR ACCESS TO THE EYETHENA SERVICE OR TERMINATE ANY END USER’S ACCOUNT, FOR ANY REASON AND WITHOUT ANY NOTICE. EYETHENA RESERVES THE RIGHT TO REFUSE ACCESS TO ANY END USER, FOR ANY REASON AND WITHOUT ANY NOTICE.

The Site, the PDT and all other aspects of the Eyethena Service are provided only for your personal, noncommercial use in compliance with the Terms of Service (the Authorized Use). Any unauthorized use of the Eyethena Service (including without limitation, accessing any aspect of the Eyethena Service for which you are not authorized, or any commercial use by you, such as, for example, reselling the PDT or marketing Healthcare Services) is expressly prohibited. You alone are responsible for all acts or omissions that occur under your End User Account, username and password.

As a condition of use, you hereby agree not to use the Eyethena Service for any purpose that is unlawful, or that is prohibited by the Terms of Service, or for any other purpose not reasonably intended by Eyethena. You hereby agree to abide by all applicable local, state, national and international laws, regulations and rules when using the Eyethena Service.

By way of example, and not limitation, you hereby agree not to take any action or provide any information using any communications service, survey, feedback, the PDT or other aspect of the Eyethena Service, in any manner, that:

Eyethena may, at its sole discretion, immediately suspend or terminate your access to the Eyethena Service should your conduct fail (or appear to fail) to strictly conform to any provision of the Terms of Service.

Eyethena has no obligation to track the Eyethena Service or anyone’s use thereof. However, Eyethena reserves the right at any time and without notice to record, review, copy, retain or disclose any information as may reasonably be necessary to satisfy any applicable law, regulation, legal process or governmental request or investigation (including any inquiry from law enforcement).

Connections and Third-Party Sites.

You may be able to use the PDT, access the Eyethena Service, and/or communicate with the Eyethena Service from, and you may be able to link or communicate from the Eyethena Service to, applications, devices, distribution platforms and websites owned and operated by Channel Partners and Clinical Partners or other third parties. These other applications, devices, platforms and websites are not operated or controlled by Eyethena, and you hereby agree that Eyethena is not responsible for the availability, accuracy, legality, appropriateness or any other aspect of the content or function of such applications, devices, platforms and websites. Additional or different terms and conditions (including without limitation, privacy and security practices) apply when you access and use such other applications, devices, platforms and websites.

Advertising and Promotions.

At this time, the Eyethena Service does not include advertisements or promotions for or offers from Eyethena, Clinical Partners, or other third parties.

Proprietary Rights.

The Eyethena Service and all content, materials, data and other information created by or for Eyethena (or its affiliates or licensors) and made available via the Eyethena Service (collectively, Content) are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws (collectively, Intellectual Property Rights), and Eyethena (and its applicable affiliates and licensors) shall own and retain all rights, title and interests (including all intellectual property and proprietary rights) therein and thereto. Unless and only to the extent expressly authorized by Eyethena, you hereby agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of any part of the Eyethena Service or Content. However, unless the Eyethena Service states or implements a different restriction, you may download, reproduce or transmit a reasonable number of copies of Content solely for your Authorized Use; provided, that you retain all copyright and other proprietary notices contained therein. Your systematic retrieval of data or other Content from the Eyethena Service to create or compile, directly or indirectly, a collection, database or directory is strictly prohibited without Eyethena’s express prior written permission.

If you desire to access or use the Eyethena Service or Content for any purpose other than Authorized Use, then you must first secure permission from Eyethena or other owner of that Content. Reproducing, copying or distributing the PDT, or any Content, or any design elements from the Site or the PDT, for any other purpose is strictly prohibited without Eyethena’s express prior written permission. Attempting to access or use the Eyethena Service or Content for any purpose not expressly permitted in the Terms of Service is prohibited.

Feedback License.

If you provide Eyethena with any idea, recommendation or other suggestion regarding possible corrections, changes, improvements or extensions related to the Eyethena Service or Content (collectively, Feedback), in any form or by any means (whether through Health Care Professionals, Business Partners, the Eyethena Service, or by direct communication [e.g., e-mail] with Eyethena or any of its officers, directors, employees, representatives, or agents), then you:

Termination.

Eyethena may immediately terminate your access to all or any part of the Eyethena Service (including without limitation, the PDT) at any time, with or without cause (including without limitation, upon instruction from the applicable Clinical Partner, Service Partner, or Health Care Provider), with or without notice. If you elect to terminate your registration and account, you may do so at any time by contacting both your Health Care Provider through the appropriate channels, and Eyethena at support@eyethena.io.

Upon any termination, all rights and obligations of the parties under the Terms of Service shall cease, and you shall immediately stop accessing and using the Eyethena Service and Content, except that:

No Warranties.

THE SITE, THE PDT, CONTENT AND ALL OTHER ASPECTS OF THE EYETHENA SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE.” THE SITE, THE PDT, CONTENT AND ALL OTHER ASPECTS OF THE EYETHENA SERVICE ARE PROVIDED WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF ACCURACY, INTEGRATION, TITLE, NON- INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

ALL REPRESENTATIONS AND WARRANTIES REGARDING ANY HEALTHCARE SERVICES SHALL BE, IF AT ALL, ONLY AS EXPRESSLY AGREED BETWEEN END USERS/PATIENTS AND THE APPLICABLE HEALTH CARE PROVIDERS AND/OR CLINICAL PARTNERS.

 Limitation of Liability.

You hereby agree that Eyethena (and its affiliates, licensors and Business Partners) shall not be responsible or liable for any End User’s or Health Care Provider’s conduct or for any End User’s or Health Care Provider’s violation of another person’s rights, including rights of publicity or privacy rights.

IN NO EVENT SHALL EYETHENA (OR ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS) BE LIABLE CONCERNING ANY SUBJECT MATTER RELATED TO THE SITE, THE PDT, CONTENT OR OTHER ASPECTS OF THE EYETHENA SERVICE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, GENERAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DAMAGES, IN THE AGGREGATE, IN EXCESS OF AMOUNTS YOU PAID TO EYETHENA FOR THE EYETHENA SERVICE OR US $100.00, WHICHEVER IS GREATER, EVEN IF EYETHENA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY ABOVE, NOTHING IN THE TERMS OF SERVICES IS INTENDED TO LIMIT OR EXCLUDE LIABILITY OF ANY HEALTH CARE PROVIDER OR CLINICAL PARTNER OR SERVICE PARTNER AS REGARDING ITS PERFORMANCE OF HEALTHCARE SERVICES.

APPLICABLE LAW IN YOUR STATE MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU HEREBY AGREE THAT EYETHENA’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR STATE.

Indemnification.

You hereby agree to (a) defend Eyethena, its affiliates, licensors and Business Partners, and their officers, directors, employees, contractors andrepresentatives (Indemnitees) against any action or suit by a third party that arises out of any transaction or other dealings between you and any other End User or other Business Partner, your misuse of the Eyethena Service, or your breach of any of your representations, warranties or covenants under the Terms of Service and (b) indemnify the Indemnitees for liabilities (resulting from settlements or judgment awards), costs and expenses (including without limitation, reasonable attorneys’ fees) related to such claims.

Eyethena shall promptly notify you of any claim for which indemnification is sought, following actual knowledge of such claim, provided however that the failure to give such notice shall not relieve you of your obligations hereunder except to the extent that you are materially prejudiced by such failure. In the event that any third party claim is brought, you shall have the right and option to undertake and control the defense of such action with counsel of your choice, provided however that (i) Eyethena at its own expense may participate and apEyethena on an equal footing with you in the defense of any such claims, (ii) Eyethena may undertake control of such defense in the event of your material failure to reasonably undertake and control the same, and (iii) the defense of any claim relating to the Intellectual Property Rights of Eyethena or its affiliates or licensors and any related counterclaims shall be solely controlled by Eyethena with counsel of its choice. You hereby agree that you shall not consent to judgment or concede or settle or compromise any claim without the prior written approval of Eyethena (which approval shall not be unreasonably withheld), unless such concession or settlement or compromise includes a full and unconditional release of Eyethena and any applicable related persons from all liabilities in respect of such claim(s).

International Use.

The Eyethena Service originates in the United States, and is subject to United States export, federal and state privacy statutes and other laws and regulations. Eyethena makes no representation that the Eyethena Service is accessible, appropriate or legally available for use in locations outside the United States, and accessing and using the Eyethena Service is prohibited from territories where doing so would be illegal. If you access or use the Eyethena Service from other locations, then you do so at your own initiative and risk and are solely responsible for compliance with local laws.

Governing Law.

A printed version of the Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service (including any Policy) to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Except as otherwise set forth in the Arbitration Agreement immediately below, the Terms of Service shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules. In the event of any conflict between U.S. and foreign laws, regulations and rules, U.S. laws, regulations and rules shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Terms of Service.

Arbitration Agreement.

By agreeing to the Terms of Service, you agree that you are required to resolve any claim that you may have against Eyethena on an individual basis in arbitration, as set forth in this Arbitration Agreement.

This will preclude you from bringing any class, collective, or representative action against Eyethena, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Eyethena by someone else. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND EYETHENA ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION.

Agreement to Binding Arbitration Between You and Eyethena.

You and Eyethena agree that any dispute, claim or controversy arising out of or relating to (a) these Terms of Service or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Eyethena Service at any time, whether before or after the date you agreed to the Terms of Service, will be settled by binding arbitration between you and Eyethena, and not in a court of law.

You acknowledge and agree that you and Eyethena are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Eyethena otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and Eyethena each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

Rules and Governing Law.

The arbitration will be administered by the American Arbitration Association (AAA) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the AAA Rules) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.

The parties agree that the arbitrator (Arbitrator), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms of Service are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

Notwithstanding any choice of law or other provision in the Terms of Service, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (FAA), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the Commonwealth of Massachusetts.

Process.

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration – Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879.) The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the Commonwealth of Massachusetts and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

Location and Procedure.

Unless you and Eyethena otherwise agree in writing, the arbitration will be conducted in New York, New York, U.S.A. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Eyethena submit to the Arbitrator, unless you request a hearing, or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. The proceedings shall be in English, and all evidence shall be in English (or translated into English).

Arbitrator’s Decision.

The Arbitrator will render a written decision within the timeframe specified in the AAA Rules. The Arbitrator’s decision shall comply with all terms and conditions in the applicable version of the Terms of Service. Judgment on the Arbitrator’s decision may be entered in any court having competent jurisdiction to do so. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. The prevailing party in arbitration may be entitled to an award of attorneys’ fees and expenses in the Arbitrator’s discretion, to the extent provided under applicable law. The parties acknowledge and agree that this Arbitration Agreement and any award rendered pursuant hereto shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Fees.

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.

General.

If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms of Service; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

Integration.

The Terms of Service (including all then-current Policies) are the entire agreement between you and Eyethena with respect to access, use and operation of the Eyethena Service, and supersede all prior or contemporaneous communications, proposals and agreements (whether oral, written or electronic) between you and Eyethena with respect to the Eyethena Service.

If any provision of the Terms of Service is found to be unenforceable or invalid, that provision will be limited or severed to the minimum extent necessary so that the Terms of Service will otherwise remain in full force and effect and be enforceable.

General Provisions.

Your rights and obligations under the Terms of Service are personal to you, and are not assignable, transferable or sub-licensable by you except with Eyethena’s prior written consent. Eyethena may subcontract, delegate, assign or otherwise transfer any or all of its rights, licenses and obligations hereunder without your consent, but with prior written notice. All waivers, consents and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment relationship is created as a result of the Eyethena Service or the Terms of Service, and neither party has any authority of any kind to bind the other in any respect. All notices under these Terms of Service will be in writing, in English, and will be deemed to have been duly given either when received, if personally delivered or sent by certified or registered mail or express courier, return receipt requested, or when receipt is electronically confirmed, if transmitted by facsimile or e-mail.

Copyright Compliance and Trademark Notices.

Trademarks. EYETHENA and the Eyethena logo are trademarks of Eyethena, Inc. The names and logos of companies, products or services mentioned on the Site and in the PDT may be the trademarks or service marks of their respective owners and shall not be deemed to create any endorsement or association between Eyethena and such owners. All rights not expressly granted herein are reserved.

Copyright Compliance. It is Eyethena’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (DMCA). In addition, Eyethena will promptly terminate without notice the accounts of End Users that are determined by Eyethena to be Repeat Infringers. A Repeat Infringer is an End User who has been notified by Eyethena of infringing activity violations more than twice.

If you are a copyright owner or an agent thereof, and you believe that any content hosted on the Eyethena Service infringes your copyrights, then you may submit a notification pursuant to the DMCA by providing Eyethena’s Designated Copyright Agent (contact information below) with the following information in writing:

  1. A physical or electronic signature of a person authorized to act on behalf of theowner of an exclusive right that is allegedly infringed;
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Eyethena Service are covered by a single notification, a representative list of such works on the Eyethena Service;
  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Eyethena to locate the material;
  4. Information reasonably sufficient to permit Eyethena to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
  5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law (for example, “I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law.”); and
  6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is allegedly infringed by the aforementioned content.”).

The Eyethena Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows:

Eyethena, Inc.

Attention: Eyethena Designated Copyright Agent

3 E 84th St. Apt 2

New York, NY 10028-0427

Eyethena Copyright Agent Email: legal@eyethena.io

Only DMCA notices should go to the Eyethena Designated Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

Channel Partner Terms.

In the event that you obtain the PDT from Apple or Google, then the following shall apply:

1. Both you and Eyethena acknowledge that the agreements in the Terms of Service are between you and Eyethena only, and not with Apple and/or Google, and that Apple and Google are not responsible for the PDT or Content;

2. You will only use the PDT in connection with an iOS or Android device that you own or control;

3. You acknowledge and agree that Apple and Google have no obligation whatsoever to furnish any maintenance or support services with respect to the PDT;

4. In the event of any failure of the PDT to conform to any applicable warranty, including those implied by law, you may notify Apple or Google (as the case may be) of such failure; upon notification, their sole warranty obligation to you will be to refund to you the purchase price, if any, paid to them for the PDT;

5. You acknowledge and agree that Eyethena, and not Apple or Google, is responsible for addressing any claims you or any third party may have in relation to the PDT;

6. You acknowledge and agree that, in the event of any third-party claim that the PDT or your possession and use of the PDT infringes that third party’s intellectual property rights, Eyethena, and not Apple or Google, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;

7. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;

8. Both you and Eyethena acknowledge and agree that, in using the PDT and Content, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and

9. Both you and Eyethena acknowledge and agree that Apple, Google and their subsidiaries are third party beneficiaries of these Terms of Service, and that upon your acceptance of the Terms of Service, Apple and Google (as applicable) will have the right (and will be deemed to have accepted the right) to enforce the Terms of Service against you as the third-party beneficiary hereof.

Contact.

If you have any questions regarding the Terms of Service, please contact Eyethena at:

Eyethena, Inc.

 General Counsel

3 E 84th St. Apt 2

New York, NY 10028-0427

E-mail: legal@Eyethena.io

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