Terms of Service

This Use Agreement (“Agreement”) is a legal agreement between you and Oculus Imaging, LLC a Tennessee limited liability company and its successors and assigns (“Oculus”).
If you do not agree to the terms of this Agreement, then you must promptly stop using the Services (defined below).

RECITALS

You desire to use the Services in order to perform work required for a trial (“Trial”).
Oculus’s is providing the Services pursuant to a Master Services Agreement or a Subscription Agreement (collectively, “Governing Agreement”);
Oculus has agreed to provide you access to the Services in exchange for agreeing to be bound to the terms and conditions in this Agreement.
The parties agree as follows:
1. Other Agreements. This Agreement does not supersede or replace the Governing Agreement. To the extent this Agreement conflicts with the Governing Agreement the Governing Agreementcontrols. ThisAgreementsetsforththeentireunderstandingbetweenyouandOculus with respect to the matters set forth herein and supersedes all previous agreements and representations with respect to the Services, other than the Governing Agreement. The Recitals are incorporated into this Agreement by reference.
2. Changes. From time to time Oculus may update the terms and conditions of this Agreement without notice. If you elect not to accept the new terms and conditions, then Oculus may, in its sole discretion, immediately terminate this Agreement, discontinue providing the Services. Your use of the Services after an update of the terms and conditions of this Agreement shall constitute your consent to such changes.
3. Definitions.
3.1. “Services” means the services provided by Oculus through its website to you, including but not limited to, the ability to analyze images, upload documents such as PDFs and videos, and manage Trial data.
3.2. “Use” means the ability to access, execute, and display the Services through a web browser.
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4. Use. Subject to the provisions of this Agreement, Oculus grants to you, a nonexclusive, non-transferrable, revocable, limited, non-sublicenseable, non-assignable, personal, right to Use the Services.
5. Program. Oculus has contracted with a sponsor to provide various image analysis services. The sponsor has requested that you be allowed to access the Services and Oculus has agreed to do so in exchange for the consideration Oculus is receiving under the Governing Agreement with the sponsor and your agreement to this Agreement.
6. Ownership. This Agreement is not a sale of Services and Oculus retains title and ownership of Services and the software used to provide the Services and all subsequent copies, including the intellectual property rights therein, regardless of the form or media in or on which the Services or subsequent copies exist.
7. Feedback. Oculus has not agreed to and does not agree to treat as confidential any Feedback (as defined below) you provide to Oculus, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Oculus’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting you. (“Feedback” means any suggestion or idea for improving or otherwise modifying the Services.)
8. Copy Restrictions. The software that provides the Services is copyrighted. Unauthorized copying of such software or any accompanying written materials is expressly forbidden. You may be held legally responsible for any copyright infringement that is caused or encouraged by your failure to abide by the terms of this Agreement.
9. Use Restrictions. You may not allow third parties to Use the Services unless such Use is expressly authorized by Oculus. You may not wrap the Services in another interface. You may not use any third-party program to access or link to the data used, collected, maintained, and/or stored in or by the Services without the express written consent of Oculus. You may not sell or license access to the data provided by the Services or the Services by itself or as a part of a service or product.
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10. Website. You acknowledge and agree that the Services are provided by Oculus in part through the Oculus website. You accept and agree to comply with the Privacy Policy, and copyright and trademark notices of Oculus posted on the website and in effect from time to time. You acknowledge and agree that, because the Services are provided in part through the website, it is necessary for you to have computer equipment and an internet connection that meets minimum specifications published by Oculus from time to time on the website, and you acknowledge and agree to periodically update your computer equipment or internet connection to meet such minimum specifications. You acknowledge that the Services may be interrupted due to (a) website downtime for scheduled maintenance at Oculus’s sole discretion, or (b) interruptions in internet connectivity or other website downtime caused by circumstances beyond Oculus’s control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failures, delays involving hardware or software not within Oculus’s control, network intrusions or denial of service attacks. You agree that Oculus shall not, in any way, be liable for, or have responsibility with respect to, any such interruptions.
11. User Name and Password. During the registration process for the Services you created a user name and password that allows you to have access to the Services through the website. You will not provide your user name or password to access the Services to any other person or entity, or allow any other person or entity to access the Services under your user name and password. You agree that you are solely responsible for any actions that occur under your user name and password or the user accounts you have created. In the event that any of the user names and password you created become known by a third party you agree to take all available precautions to prevent the user name and password from being used by an unauthorized individual, including, but not limited to, disabling the user name, and you agree to notify Oculus immediately.
12. Updates. Oculus may create, from time-to-time, upgrades, modifications, updates, additions, and/or patches to the Services, which may be made available to you while you have a current and valid right to Use the Services.
13. Confidential Information.
13.1. “Confidential Information” means all confidential and proprietary information, regardless of whether it is marked confidential, that you have access to as a result of using the Services, including, but not limited to information relating to the Trial, the Services, all Trial Guidelines, Trial Report Templates, Trial Reports, Trial Protocols (or other protocols), as such terms are defined in the Governing Agreement, reports, participating Trial sites, enrollment data, inf ormat ion pert aining t o t he st at us of a Trial (exclud ing inf ormat ion published on www.clinicaltrials.gov), communications to and from the FDA, information relating to the regulatory status of a device the subject of a Trial, and correspondence to or from any clinical events committee or data safety monitoring board.
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13.2. Non-Confidential Information. Confidential Information does not include information that: (i) is at the time of disclosure, or thereafter becomes, a part of the public domain without breach of this Agreement or another agreement (provided that the act of copyrighting shall not be construed as causing such copyrighted materials to be in the public domain); (ii) is lawfully in your possession prior to the disclosure, as shown by written records; or (iii) is lawfully disclosed to you by a third party unrelated to Oculus who does not owe a duty of confidentiality to Oculus or the owner of the Confidential Information.
13.3. Non-Disclosure. You shall, at all times: (i) regard and preserve as confidentialthe Confidential Information; (ii) refrain from directly or indirectly publishing or disclosing any part of such Confidential Information; (iii) use reasonable care, but in no event less than the same degree of care that you use to protect your own confidential information, to prevent the unauthorized use, disclosure, publication, or dissemination of Confidential Information; and (iv) to refrain from any other acts or omissions that would reduce the value of such Confidential Information to the owner of the Confidential Information.
13.4. Limited Use and Dissemination. You agree that you will: (i) use the Confidential Information for the sole purpose of providing or receiving Services in accordance with this Agreement, (ii) disclose or permit access to the Confidential Information only to the extent that it is necessary to disclose such information to your representatives, agents, subcontractors, consultants, and/or employees having a strict need to know such information; and (iii) inform all recipients of any Confidential Information of the confidential nature of such information and obtain each recipient’s agreement to be bound by the terms and conditions of this Agreement prior to provision of such information. You shall be responsible for any breach or threatened breach of this Agreement by your representatives, agents, and/or employees.
13.5. Compelled Disclosure. In the event you believe your are legally compelled to disclose any Confidential Information, you will provide Oculus with prompt written notice, prior to the disclosure, so that Oculus may obtain a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, you will disclose only that portion of the Confidential Information that Oculus’s legal counsel determines is legally required to be disclosed.
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13.6. Return of Confidential Information. Upon termination of this Agreement or upon request by Oculus, you shall promptly return to Oculus all originals, copies, and information containing and/or pertaining to all Confidential Information. Notwithstanding the foregoing, your obligation to maintain the confidentiality of Oculus or the owner’s Confidential Information shall survive any termination of this Agreement.
14. Limited Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN THE SERVICES ARE PROVIDED “AS IS”, AND OCULUS AND ITS SUPPLIERS AND LICENSORS DO NOT MAKE AND SPECIFICALLY DISCLAIM, ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE SERVCIES (INCLUDING, WITHOUT LIMITATION, ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), AS WELL AS ANY WARRANTIES THAT THE SERVICES (OR ANY ELEMENTS THEREOF) WILL ACHIEVEAPARTICULARRESULT,ORWILLBEUNINTERRUPTEDORERROR-FREE.
15. No Support. Oculus does not provide support for the Services through this Agreement but may provide support for the Services through the Governing Agreement.
16. Indemnification. You agree to indemnify, defend and hold harmless Oculus and its officers, directors, employees, agents and contractors from any loss, cost, expense (including attorney’s fees and expenses), demand, claim, liability, damages or cause of action of any kind or, in any manner arising out of or relating to (i) any violation or breach by you of any provision of this Agreement; (ii) your disclosure of Confidential Information, or (iii) your negligence, recklessness or intentional misconduct.
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17. Limitation of Liability . TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OCULUS BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF PROFITS, REVENUE, DATA OR USE, OR FROM INTERRUPTED COMMUNICATIONS OR DAMAGED DATA, OR FROM ANY DEFECT OR ERROR OR IN CONNECTION WITH YOUR ACQUISITION OF SUBSTITUTE GOODS OR SERVICES OR MALFUNCTION OF THE SERVICES, OR ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY, EVEN IF OCULUS OR ANY OTHER PERSON HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY TO ACHIEVE ITS INTENDED PURPOSE. WITHOUT LIMITING THE FOREGOING OR ANY OTHER LIMITATION OF LIABILITY HEREIN, REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, YOUR EXCLUSIVE REMEDY AND THE TOTAL LIABILITY OF OCULUS OR ANY SUPPLIER OF SERVICES TO OCULUS FOR ANY CLAIMS ARISING IN ANY WAY IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF THE USE OF THE SERVICES, SHALL NOT EXCEED $10. OCULUS SHALL HAVE NO LIABILITY WHATSOEVER TO YOU FOR ANY CLAIMS OF PATENT, COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHT INFRINGEMENT OR MISAPPROPRIATION OF TRADE SECRETS, MADE AGAINST YOU INCIDENT TO THE USE OF THE SERVICES.
18. Termination.
18.1. For convenience. Either party may terminate this Agreement immediately by providing written notice to the other party. Oculus may restrict your access to the Services at any time, for any reason.
18.2. Survivability. Sections 6, 7, 8, 9, 13, 14, 16, 17, 19 and 20 survive the termination of this Agreement.
19. Choice of Law. This Agreement is governed by the laws of the State of Tennessee, without regard to choice of law provisions to the contrary.
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20. Dispute Resolution.
20.1. Arbitration. The parties agree any dispute under or related to this Agreement will be submitted to final and binding arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules and the laws of the State of Tennessee, United States of America. In the event the International Arbitration Rules conflict with the provisions of this Agreement the provisions of this Agreement shall govern. Unless otherwise directed by the arbitrator, such arbitration must be concluded within ninety (90) days of the initiation of the arbitration. If the parties cannot agree on a single arbitrator, each will select an arbitrator, and the two chosen arbitrators will select a third arbitrator who shall alone decide the dispute; provided, however, that if the parties cannot agree on a single arbitrator and either party fails to select an arbitrator within thirty (30) days after a party requests arbitration, the arbitrator shall be named by the International Centre for Dispute Resolution upon the request of either party.
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20.2. Venue; Language; Costs. Any mediation, arbitration or any related hearing or conference conducted hereunder will be conducted in Knoxville, Tennessee, United States of America or the closest available venue to Knoxville, Tennessee. The language of any arbitration or mediation shall be English. The parties hereto shall equally share the costs of mediation (including the mediator’s fees and expenses and costs directly related to the conduct of the mediation, but excluding each party’s direct costs for transportation, attorneys, etc., for which each will be responsible). If any party fails to participate in mediation or arbitration after receipt of notice thereof, then each party hereto agrees that the other party shall have the right to proceed immediately to arbitration and that such other party shall be entitled to select the arbitrator in its sole discretion. Each party further agrees that, in such event, such arbitrator shall have the right to decide the dispute as if the non-participating party were participating in the arbitration and that such decision shall be final and binding upon each party hereto.
20.3. Attorney Fees and Other Arbitration Expenses. If any party hereto resorts to arbitration to remedy a breach of this Agreement, the prevailing party in the arbitration, in addition to any other remedies available under this Agreement or by law, may collect all or a portion of its reasonable attorney fees and other costs and expenses of arbitration at the discretion of the arbitrator, who shall consider both the reasonableness of the attorney fees and other costs and the relative merits of each party’s position. It is the intent of all parties hereto to avoid arbitration without preventing a party from seeking redress for a valid dispute. To that end, all parties express their intent and agreement that unreasonable attorney fees and costs not be awarded, and that all or a portion of reasonable attorney fees and costs be awarded when in the arbitrator’s opinion the party against whom such fees and costs are awarded has maintained position(s) which have significantly less merit compared to the prevailing party’s position(s). Further, it is all parties intent that any party seeking redress through litigation, despite the fact that arbitration is required by this Agreement, shall not be entitled to recover any attorney fees or costs for such litigation or in any subsequent arbitration, regardless of the outcome of such litigation or subsequent arbitration.
21. Attorney’s Fees. The prevailing party in any action filed under this Agreement or related to the Services is entitled to reasonable attorney’s fees and costs.
22. Headings. The headings of the sections of this Agreement are for convenience only, and in no way limit or affect the terms and conditions or the meaning or interpretation of this Agreement.
23. Severability. If any provision of this Agreement is held to be invalid or unenforceable then that provision will be altered or limited such that it is enforceable and corresponds to the original provision as closely as possible. An invalid or unenforceable provision of this Agreement shall not affect the validity of the remaining provisions of this Agreement.
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24. Waiver. Waiver by either party of a breach of any provision contained in this Agreement shall not constitute or be construed as a waiver of any succeeding breach of such provision or a waiver of the provision itself.
25. Time To File Lawsuit Or Other Action. You agree to file any lawsuit or other action you may have against Oculus or its agents, employees, subsidiaries, affiliates or parent companies within one (1) year from the date of the event that caused the loss, damage or liability or be forever barred.
26. Assignment. Neither party shall assign or otherwise transfer or purport to assign or otherwise transfer this Agreement or any of its rights or obligations hereunder or any part thereof without the prior written consent of the other party, except that Oculus may assign any of its rights or obligations to any successor-in-interest or to an entity that acquires all or substantially all of its assets, all or a majority of its equity in any form, or to an entity into which such party is merged; provided, however, that the entity to whom the rights and obligations of a party are assigned (the “Successor”) shall execute a written instrument whereby the Successor agrees to accept all of the rights and obligations of the assigning party under this Agreement. Any assignment in violation of this Section is null and void.
If you have questions about this Agreement you may contact Oculus at info@oculusimaging.com.