APPLICATION LICENSE AGREEMENT

Rev. 12.2014

This Application License Agreement (“Agreement”) is between VueCare Media, LLC, a Maryland limited liability company (“VueCare”) and you (“You”). By using Application and any content made available to You by VueCare, or any data or work therein (“Content”), You agree to this Agreement with VueCare. Your continued acceptance and compliance with this Agreement is a condition precedent to Your license to use Application.

I.    DEFINITIONS

1.1. “Documentation” means the published user guides and technical manuals, Application descriptions and specifications, supporting materials and other information relating to Application, if any, including all updates and modifications thereto. Documentation may be provided electronically, in video or print format.

1.2. “Effective Date” means the date on which Application is first made available for Your use.

1.3. “Order Form” means the document in print or electronic form by which You order Application licenses and any related services. Each Order Form must be accepted by VueCare to be effective.

1.4. “Application” means the VueCare proprietary application distributed by VueCare that you have specified on an Order Form (such as VueSimulator, VueLibrary, VueConnect, and Eye Channel TV) for which You are granted a license pursuant to this Agreement, and includes the content, media, Documentation and Updates therefor.

1.5. “Update” means a subsequent release of Application which VueCare generally makes available for Application licensees. Update shall not include any release, option or future product which VueCare licenses separately.

1.6. “Hardware” means Media Player boxes or any other hardware supplied to you by VueCare associated with its provision of services.

II.    PROGRAM LICENSE

2.1. Rights Granted

A. Subject to Your strict compliance with the terms and conditions of this Agreement including payment in full of all license and other fees and charges, VueCare grants to You a limited, nonexclusive, nontransferable license to use Application for the Term, as follows:

i. to use Application solely for Your internal business operations in the ordinary course of business in the United States of America as an eye care professional, consistent with the use limitations specified or referenced in this Agreement and the Documentation. The license granted hereunder shall extend to Your employees and Your and their patients authorized to have access to Application who have accepted the VueCare Terms of Service and End User License Agreement (EULA) as a pre-condition to access to Application. You may not relicense, sublicense, rent or lease Application, use Application for third-party training, commercial time-sharing or service bureau use or processing data of any other entity, or otherwise permit any third person or party (including non-employee participants in Your professional network, each of whom must enter into a separate license agreement with VueCare in order to access Application) to access or use Application, other than as expressly permitted under this Agreement;

ii. to use the Documentation, if any, provided with Application solely in support of Your authorized use of Application;

iii. to allow third parties to use any content on Application solely for the benefit of You in support of its authorized use of Application, so long as such use is in accordance, and such third parties comply, with the terms of this Agreement. You hereby indemnify, defend and hold VueCare harmless for all acts and omissions of each third party.

B. You shall not copy or use any content on Application (including the Documentation) except as specified in this Agreement or an Order Form.

C. You agree not to cause or permit the reverse engineering, disassembly or decompilation of Application.

D. VueCare retains all title, copyright and other proprietary rights in Application, including all Documentation and all Updates and custom modifications which shall become part of Application. You do not acquire any rights, express or implied, in Application, other than those specified in this Agreement.

E. Nothing in this agreement transfers any rights to VueCare in Your intellectual property and data; all such rights shall remain with You.

2.2. Verification

You shall keep full, true and accurate records and accounts of each authorized workforce employee and patient having access to Application (“Authorized Licensees”). Promptly upon VueCare's request, You shall make records available for audit by VueCare or its authorized representative. Any such audit shall be conducted during regular business hours either remotely or at Your facilities, in VueCare’s sole discretion. Such audits shall not unreasonably interfere with Your business activities. If an audit reveals that You have underpaid fees to VueCare, You shall be in breach of Your obligations under this Agreement and, in addition to all other rights of VueCare under this Agreement, You shall pay upon demand all such fees plus interest accrued thereon. VueCare’s failure to conduct an audit shall not constitute a waiver of its right to do so in the future. In addition, upon VueCare’s request, You shall verify in writing that Application is being used in strict accordance with the terms of this Agreement.

2.3 Content and Retention

You are solely responsible for all content uploaded, posted, transmitted, stored, accessed or otherwise made available using Application and any Hardware (the “Client Material”) and the consequences of displaying, posting or publishing any such content. In connection with uploading any Client Material, You affirm, represent, and /or warrant that: You own or have the necessary licenses, rights, consents, and permissions to use and authorize VueCare to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Client Material to enable inclusion, use and display of the Client Material. By uploading any Client Material, You hereby grant VueCare a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Client Material (and derivative works thereof) in connection with the services. You further agree that You will not upload or show any material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless You are the owner of such rights or have permission from their rightful owner to post the material and to grant VueCare all of the license rights granted herein. You further agree that all Client Material must be legally transmissible and is content that is appropriate to show to the general public including children, does not contain any sex or nudity, hate speech, shocking or disgusting content, and other inappropriate content, or is in violation of any applicable local, national, and international laws and regulations. VueCare strictly prohibits copyright infringing activities and infringement of intellectual property rights, and VueCare will remove any Client Material if properly notified that such Client Material infringes on another's intellectual property rights. VueCare reserves the right to remove Client Material without prior notice.

2.4. Your Responsibilities. VueCare is only responsible for providing you access to use Application. VueCare has no obligation to support and maintain and specifically disclaims any liability for any content, including but not limited to any content that You upload to or otherwise display using Application and for any use of such content or reliance upon such content by any third party. For clarity, VueCare acts as a passive conduit and does not maintain or store any Client Material including but not limited to any medical records. As between You and VueCare, You are solely subject to applicable laws regarding privacy, data security, confidentiality, transmission, retention, and deletion of patient records.

It is Your responsibility to have all users comply with this Agreement, use commercially reasonable efforts to prevent unauthorized access to or use of the services or Content (and notify us immediately of unauthorized access or use) and using the Application, Hardware, Documentation, and Content in accordance with all laws and contracts to which You are subject.

It is solely Your responsibility to follow proper procedures required by law and good professional medical and data handling practice with regard to the form of patient records, the creation and storage of backup copies of computerized patient records, consents to treat or disclose, and use or release of any patient data. VueCare does not store or maintain any medical records.

You acknowledge and agree that all programs, services, materials, and subscription/access provided hereunder are not intended to be used as diagnostic tools or to provide medical diagnoses or determinations and that You and your authorized users accept all risk and are solely responsible for using any content available through Application. You will be solely responsible for the professional, advisory, analytical, and technical services you provide using Application. VueCare makes no representation concerning the completeness, accuracy, availability or utility of any information provided by using the Content, services and Application, or concerning the qualifications or competence of individuals creating such information. VueCare has no liability for the consequences to You or your patients for Your use of Content, services and the Application.

Notwithstanding the foregoing, You shall be solely responsible for: (i) procuring, at Your expense, the necessary environment at Your location(s) to use Application via the Internet or otherwise, including, without limitation, all computer hardware, software and equipment, Internet access and telecommunications services (“Your Systems”); (ii) complying with all laws, rules and regulations related to Your use of Application including but not limited to all laws relating to maintenance of privacy, security and confidentiality of patient and other health information and the prohibition on the use of telecommunications facilities and other mediums to transmit illegal, obscene, threatening, libelous, harassing, or offensive messages or otherwise unlawful material; (iii) keeping Your user name and password secret and confidential, and, for any communications or transactions that are made, requiring the same of end users; (iv) ensuring that the intended recipient of any information you transmit is the actual recipient of such information and obtaining any parental consents or other consents as necessary (v) changing Your user name and password if You believe the same has been stolen or might be misused; (vi) maintaining appropriate information security tools, technologies, firewalls, antivirus, spyware, etc. and other technical and administrative precautions to preserve and protect any confidential or protected information, including but not limited to any protected health information (PHI) accessible through or from Application.

III. ADDITIONAL SERVICES

3.1. Support

VueCare may provide basic support provided that VueCare reserves the right to impose additional fees if support requests become excessive, in VueCare’s sole determination.

3.2. Professional Services

VueCare may provide professional services as may be agreed to between the parties in writing. All such services shall be pursuant to the terms and conditions of this Agreement and billed on a time and materials basis unless the parties expressly agree otherwise in writing.

IV.    TERM AND TERMINATION

4.1. Term

Upon full payment of all fees due by You to VueCare, this Agreement and the license granted under this Agreement shall continue for as long as specified in the Order Form and will automatically renew unless a party provides at least thirty (30) days prior written notice before the renewal term (the “Term”), unless sooner terminated under this Article IV.

4.2. Termination

This Agreement is effective until terminated. VueCare may terminate this Agreement immediately for any violation and at its convenience upon five (5) business days prior written notice to You.

4.3 Effect of Termination

Termination of this Agreement or any license granted hereunder shall not limit VueCare from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Your obligation to pay all fees that have accrued or are otherwise owed by You under this Agreement. The parties’ rights and obligations under Sections II, IV, V, VI, VII and all payment obligations, and all rights and obligations under the Eye Channel Terms (if applicable) shall survive termination of this Agreement. Upon termination, You shall cease using Application and shall return or destroy all related Documentation and any other materials or information pertaining to Application provided in hard copy format, and shall certify compliance of these requirements in writing to VueCare. VueCare may retain archived data for longer periods, VueCare has no obligation to provide copies of any data.

V.    INDEMNITY

5.1. Disclaimers

A. Third Party Products
The decision to acquire hardware, web application, transmission services (in any form), supplies or service from parties other than VueCare (“Third Party Products”) is solely Yours, even if VueCare assists in the identification, evaluation or selection of them. VueCare is not responsible for, and expressly disclaims liability for, performance or quality of Third Party Products or their suppliers, including but not limited to the Hardware, and their failure will not affect Your obligations to VueCare.
VUECARE ASSUMES NO RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE HARDWARE, APPLICATION OR ANY CONTENT, INCLUDING CONTENT THAT ARE REFERENCED BY OR LINKED TO THIRD PARTY SITES. VUECARE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND FOR THE CONTENT OF ANY THIRD PARTY SITES.

B. Legal Compliance
VueCare makes no policy or medical decisions as to patient education, diagnosis, treatment or otherwise and You shall retain full responsibility for and hold harmless VueCare from use of Application and any content and the results of displaying, sending, or sharing any content with any third party, including but not limited to any patients.

C. Disclaimer of Warranty
You acknowledge that use of Application You and any practitioners and their patients shall be at Your sole risk and responsibility.

THE APPLICATION, HARDWARE, CONTENT, AND ANY PORTIONS THEREOF, ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND. VUECARE AND ITS EMPLOYEES, AGENTS, CONTRACTORS, SUBCONTRACTORS, CONTRIBUTORS AND THIRD PARTY PROVIDERS (THE " VUECARE RELATED PARTIES") DO NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS CONCERNING THE APPLICATION, HARDWARE, AND CONTENT, AND SPECIFICALLY DISCLAIM ANY WARRANTY OR REPRESENTATION CONCERNING THE QUALITY, SAFETY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENTNESS, OR FUNCTIONALITY OF THE APPLICATION, HARDWARE AND CONTENT. MOREOVER, VUECARE AND THE VUECARE RELATED PARTIES DO NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND/OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO THE APPLICATION, HARDWARE, AND CONTENT. VUECARE AND THE VUECARE RELATED PARTIES ALSO DO NOT WARRANT THE APPLICATION, HARDWARE, AND CONTENT TO BE FREE OF ANY ERROR OR DEFECT. YOU: (1) ASSUME THE ENTIRE RISK AS TO THE SUITABILITY, USE, RESULTS OF USE, PERFORMANCE, ACCURACY, COMPLETENESS, CURRENTNESS AND PERFORMANCE OF THE APPLICATION, HARDWARE, AND CONTENT; (2) WAIVE ANY CLAIM OF DETRIMENTAL RELIANCE UPON THE APPLICATION, HARDWARE, AND CONTENT; AND (3) AGREE TO INDEPENDENTLY VERIFY, THROUGH OTHER SOURCES, THE ACCURACY, COMPLETENESS AND CURRENTNESS OF THE CONTENT.

D. Medical Disclaimer
You acknowledge that Application and Content do not constitute a medical device or application and should not be used to deliver or be considered a substitute for professional medical advice, diagnosis, or treatment. The Content including narration, text, graphics, images, animations, and other material, provide general information and guidelines. VueCare is not engaged in rendering any medical, legal or other professional service. It is Your responsibility to encourage your patients to seek the advice of a physician or other qualified health provider with any questions regarding a medical condition. VueCare does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned in any content.

VueCare does not represent or warrant that Application or Content comply with the specific terms of any laws or implementing regulations, including but not limited to those applicable to medical practices and those pertaining to the collection, use and/or storage of personally identifiable information or protected health information (although VueCare follows industry standard practices designed to protect integrity of VueCare’s database) including but not limited to HIPAA and HITECH Act. You are solely responsible that your intended and actual use of the services complies with all laws and regulations applicable to You, Your business, Your use of the services, and the activities of any third parties.

E. Ancillary Policies
All users of Application may be required to agree to and comply with the terms of VueCare’s Terms of Service, End User License Agreement (EULA), Privacy Policy and any other policies now or hereafter implemented, as each may be modified and supplemented from time to time and the same are deemed incorporated within and made a part of this Agreement. These policies may be found on VueCare’s website at this page. By its execution of this Agreement, You acknowledge for Yourself and any third party licensee receipt of and acceptance of the terms contained in all such policies in effect as of the Effective Date. You are responsible for ensuring that all users accessing Application through Your license, have reviewed and agreed to be bound by the terms of each ancillary policy then in effect.
5.2. Indemnification

You shall indemnify and hold VueCare harmless against any claim, liability, expenses, and losses, including but not limited to death, personal injury, illness, or property damage, and damages and costs (including reasonable attorney’s fees and costs) relating to (i) any use of Application and Hardware, (ii) any use or reliance upon any content on Application and Hardware, (iii) any claim that Your or an end user’s use of Application, Hardware and Content including collection, use and retention of the personal information of an individual in connection therewith, is not in strict compliance with applicable law, rule or regulation, (iv) any data security breach in connection with or arising out of your use of Application, Hardware and Content (v) the use, display or distribution of any Client Material, (vi) any other unauthorized use related to the services; or (vii) any breach of Your obligations under this Agreement.

VI. ORDER/PAYMENT PROVISIONS

6.1. Fees

You agree to pay all fees specified in the Order Form. Except as stated in an Order Form, all fees are based on services purchased and not actual usage, payment obligations are non-cancellable and fees are non-refundable. All fees are due on the first of each month after the Effective Date. VueCare reserves the right to suspend any services, revoke your license, and repossess any Hardware for any failure to pay on the due date or violation of this Agreement. You must provide VueCare with up-to-date credit card information at all times. You hereby authorize VueCare to charge Your credit card all fees due, including but not limited to all monthly fees on a recurring monthly basis, including all renewal terms. Such charges will be made in advance. You are responsible for providing complete and accurate billing and contact information to VueCare and notifying us of any changes to such information.

6.2. Orders

Anyone desiring to license Application shall issue a completed written or electronic Order Form signed or (in the case of electronic transmission) sent by its authorized representative. The terms and conditions of this Agreement (and the Eye Channel Terms, if applicable) and each accepted Order Form prevails, regardless of any conflicting terms on any purchase order or other correspondence submitted by You to VueCare and any such conflicting terms are deemed rejected by VueCare unless expressly agreed to in writing. All purchase orders are subject to approval and acceptance by VueCare. Fees are subject to the order form. Pricing and availability of products and services are subject to change without notice.

6.3. Invoicing and Payment

All payments shall be in U.S. currency unless otherwise agreed. You agree to pay applicable media and shipping charges. Interest shall be charged on all payments not made by the required due date, at a rate of one and one-half percent (1.5%) per month.

6.4. Taxes

The fees listed in this Agreement do not include taxes or withholdings. If VueCare is required to pay sales, use, property, excise, value-added, duties, tariffs or other taxes based on the licenses or services granted in this Agreement or on Your use of Application Portal or services, then such taxes shall be billed to and paid by You. This Section shall not apply to taxes based on VueCare’s income, provided, however, that any withholding or other tax imposed by any government other than the United States of America or any of its member states shall be paid by You, and the amounts due VueCare hereunder or as invoiced shall be “grossed up” to account for such withholding or tax, so that the fees received by VueCare hereunder will be net of any such withholding or tax.

VII. GENERAL TERMS

7.1. Nondisclosure

By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Confidential Information includes all of VueCare’s intellectual property incorporated into Application, all Updates thereto, all content and Documentation, the terms and pricing under this Agreement, and all other information clearly identified as confidential. Treatment of personally identifiable information of an individual shall be governed by the terms of VueCare’s Privacy Policy.

A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party without use of Confidential Information. You shall not disclose the results of any benchmark tests of Application to any third party without VueCare’s prior written approval.

The parties agree to hold each other’s Confidential Information in confidence. The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party for any purpose without the consent of the owner. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Prior to any disclosure required by law, the disclosing party shall promptly notify the owner of the Confidential Information of any request for disclosure and cooperate with the owner in any efforts to restrain or limit disclosure or obtain a protective order.

7.2. Governing Law/ Jurisdiction

This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of Maryland. VueCare and You agree, as a material term of this Agreement, that any dispute with respect to the subject matter hereof shall be subject to the exclusive venue and jurisdiction of the Circuit Court for the City/County of Howard, State of Maryland or the United States District Court for the Northern District of Maryland, and any legal action or proceeding relating to this Agreement shall be instituted in such courts, provided that the foregoing shall not prevent VueCare from seeking injunctive or other equitable relief in any court of competent jurisdiction. The parties hereto agree to waive all right to a jury trial in connection with disputes brought under this Agreement.

7.3. Assignment

You may not assign this Agreement or transfer Your license to an unauthorized third party without the prior written consent of VueCare which may be withheld for any reason. Approved transfers are subject to VueCare’s fees and terms in effect at the time of transfer.

7.4. Notice.

All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be deemed to have been given when personally delivered, twenty-four (24) hours after deposit with a recognized overnight courier or on the third day after being mailed by first class mail to the address delineated on the signature page of this Agreement. To expedite order processing, You agree that VueCare may treat documents faxed or emailed by You to VueCare as original documents; nevertheless, either party may require the other to exchange original signed documents.

7.5. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES WILL VUECARE, ITS EMPLOYEES, CONTRACTORS, AGENTS, THIRD PARTY PROVIDERS, AUTHORIZED DISTRIBUTORS OR LICENSORS OR ANY RELATED PERSONS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON ANY CLAIMS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, USE OF MONEY OR USE OF THE APPLICATION, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, LEAK OF INFORMATION, OR BREACH OF PRIVACY RIGHTS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR REMEDY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE EVEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE AGGREGATE LIABILITY OF VUECARE, ITS EMPLOYEES, CONTRACTORS, AGENTS, THIRD PARTY PROVIDERS, AUTHORIZED DISTRIBUTORS OR LICENSORS OR ANY RELATED PERSONS EXCEED AN AMOUNT EQUAL TO THE FEES ACTUALLY PAID TO VUECARE BY YOU. THIS SECTION WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY, DESPITE THE FOREGOING EXCLUSION AND LIMITATION. YOU HEREBY ACKNOWLEDGE THAT THE MUTUAL COVENANTS AND AGREEMENTS SET FORTH IN THIS AGREEMENT REFLECT THIS ALLOCATION OF RISK.

7.6. Severability

If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and the trier of law shall be empowered to conform the unenforceable provision so as to make it enforceable.

7.7. Waiver

The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of VueCare’s proprietary rights in Application, no action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

7.8. Export Administration

You agree to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to assure that neither Application nor any direct product thereof are (1) exported directly or indirectly, in violation of Export Laws; or (2) are intended to be used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.

7.9. Force Majeure

VueCare shall have no liability for delays, failure in performance or damages due to fire, explosion, lightning, power surges or failures, strikes or labor disputes, water, acts of God, the elements, war, civil disturbances, acts of civil or military authorities, inability to secure materials, transportation facilities, fuel or energy shortages, acts or omissions of communications carriers, unauthorized use of Application, or other causes beyond VueCare’s control whether or not similar to the foregoing.

7.10. Entire Agreement

This Agreement (including the Eye Channel Terms, as applicable), together with all ancillary policies and accepted Order Forms (which are deemed a part of this Agreement) constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements for representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement.

It is expressly agreed that the terms of this Agreement shall supersede the terms in any of Your ordering documents.