Terms of Service:

Please read these Subscription Agreement Specific Terms of Service (“Terms”) carefully as they govern your access to and use of Vision Services offered by Alexander Optical Corporation’s Subscription Agreement. By continuing to access or use the Alexander Optical's Vision Services, you indicate that you have read and accept these terms of service and agree to comply with and be bound by these Terms.

Thank you for using Alexander Optical!

These Terms constitute a legally binding agreement (“Agreement”) between you (the “User”) and Alexander Optical (as defined below) governing your access of the Alexander Optical's Vision Services, including any Third-Party affiliates thereof, and any other websites through which Alexander Optical makes its services available (collectively, “Site”), our mobile device applications (“Application”) and all associated services (collectively, “Services”). If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising that you have the authority to bind that organization to these Terms. The Site, Application and Services together are hereinafter collectively referred to as the “Alexander Optical Platform”.

Supplemental terms may apply to certain Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable Services. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.

In the event that changes are made to any terms or conditions a new copy of the Terms shall be available on the Alexander Optical Platform with a memo at the top of the document highlighting said changes. Changes to the Terms will be effective immediately upon notification to users of the updated documents availability on the Alexander Optical Platform. Alexander Optical may require users to provide consent to the updated Terms in specified manner before further use of the Alexander Optical Platform and/or Services provided.

If you do not agree with any change(s) after receiving a notice of such change(s), you shall be required to stop using the Alexander Optical Platform and/or Services. Otherwise, your continued use of the Alexander Optical Platform and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE TERMS OF SERVICE SECTION ON THE ALEXANDER OPTICAL PLATFORM TO VIEW THE MOST CURRENT TERMS. You should read these Terms of Service in their entirety; however, this index is provided for reference.

1 Services

1.1 Vision Services

Subject to Partner’s compliance with this Agreement (which includes the Service Agreement, these Terms and Conditions, and the Business Associate Agreement, collectively “Partner Agreement”) during the Term, Partner will provide the Vision Services to Subscriber Patients in accordance with and subject to this Agreement. The Vision Services will be provided through the website located at a URL to be provided to Partner and further to the Subscriber (“the Service URL”). Visibly may change the Service URL from time to time upon reasonable advance notice to Partner who will advance notice to the Subscriber.

1.2 Restrictions

Partner and Subscriber will not (and will not allow anyone else to) attempt to interfere with or disrupt the Vision Services or the Software or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Vision Services). Partner and Subscriber will not (and will not allow anyone else to): (a) copy, modify or distribute any portion of the Vision Services or Software; (b) rent, lease, or provide access to the Vision Services or Software on a time-share or service bureau basis; (c) reverse engineer, decompile or disassemble any part of the Vision Services or Software; (d) transfer any of its rights hereunder (except as specified in Section 11.8),or (e) remove, alter or obscure any copyright, patent, trademark or other proprietary rights or confidentiality notice in or on any Intellectual Property Rights of Visibly or Alexander Optical Corporation.

2 Obligations of the Parties

2.1 Promotion

Throughout the Term (as defined below), the Subscriber shall use reasonable efforts to endorse and promote Vision Services. All of the Subscriber’s marketing, discussions, or other representations of features and offerings concerning the Vision Services will be approved by Alexander Optical Corporation in advance, in writing (email acceptable), or provided by Alexander Optical Corporation. Subscriber will not be entitled to make any other representation, warranty, guarantee or promise about Vision Services without prior written approval.

2.2 Branding

Any use by either party of the other party’s Trademarks must be approved in writing by such party prior to its distribution, release, or publication. Unless otherwise approved in writing by the party that owns the Trademarks, each party will comply with the branding and trademark guidelines that the other party provides in writing. Subject to the this Agreement, each party hereby grants to the other party a non-exclusive and non-transferable (except in accordance with Section 11.8) license during the Term to use and display its Trademarks solely as approved and in accordance with the requirements of the granting party’s branding and trademark guidelines.

2.3 Doctor-Patient Relationship

(a) Subscriber acknowledges and agrees that Partner may be creating a doctor-patient relationship with Subscriber Patients who use the Vision Services. Visibly nor Subscriber will not interfere with this doctor-patient relationship.

(b) Partner shall use commercially reasonable efforts to (i) obtain information about each Subscriber Patient’s place of residence, and (ii) send such Subscriber Patients’ vision test results only to a doctor who is actively licensed to practice medicine in the place of residence of such patient.

(c) Partner will be responsible for properly introducing the relevant Subscriber Patients to the appropriate clinic, but will not be responsible for any health services provided.

2.4 Communication with Users

Except as set forth herein, communications by Visibly and Alexander Optical Corporation to Subscriber Patients will be limited to those relevant to delivery of Vision Services. Visibly shall not disclose, sell, assign, lease or otherwise provide Partner Patient Data to third parties or partner with any third parties to perform any action prohibited by this Agreement. Visibly reserves its rights to communicate with Subscriber Patients who were Visibly Users before the effective date of this Agreement without any restrictions under this Agreement applying to such communications.

2.5 Cooperation and Assistance

As a condition to Alexander Optical Corporation’s obligations hereunder, Subscriber shall at all times: (a) provide Alexander Optical Corporation with good faith cooperation and access to such information, facilities, personnel (as necessary) and equipment as may be reasonably required by Alexander Optical Corporation in order to provide the Vision Services, including, but not limited to, providing Alexander Optical Corporation access to Subscriber Patient Data, security access, information, and software interfaces to Subscriber’s business applications; and (b) carry out in a timely manner all other Subscriber responsibilities set forth in this Agreement.

2.6 Telecommunications and Internet Services

Subscriber acknowledges and agrees that Subscriber’s and its Subscriber Patients’ use of the Vision Services is dependent upon access to telecommunications and Internet services. The user shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Vision Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. The Subscriber acknowledges that Subscriber Patients may opt to use the Vision Services on their premises and when in such scenario the Subscriber shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access the Vision services, including without limitation, any and all costs, fees, expenses and taxes of any kind related to the foregoing. Alexander Optical Corporation shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.

3 Payment Terms

3.1 Fees

In consideration for Alexander Optical Corporation providing the Vision Services, Subscriber shall pay to Alexander Optical Corporation fees, with the payment terms as described in Section 1 of the Service Agreement.

3.2 Taxes

All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Partnershall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Visibly’s net income.

4 Visibly Ownership

4.1 Visibly Vision Services and Software

As between Visibly and Partner, the Vision Services and Software (and all copies of the Software), and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Visibly or its licensors.

4.2 Visibly User Data

As between the parties, all right, title and interest in and to the Visibly User Data will be exclusively owned by Visibly.

4.3 Partner Patient Data

As between the parties, all right, title and interest in and to the Partner Patient Data will be exclusively owned by Partner. Except for the rights expressly granted to Visibly herein, Partner reserves all rights in and to the Partner Patient Data to itself.

4.4 Data-Related Restrictions

Neither party, as the party receiving the Partner Patient Data or Visibly User Data from the other party (as applicable), will, unless it has the relevant Partner Patient or Visibly User’s consent thereof, do any of the following with respect to the Partner Patient Data or Visibly User Data: (i) use such data; (ii) disclose, sell, assign, lease or otherwise provide such data to third parties; or (iii) commercially exploit such data in any form either directly or through a third party.

4.5 Trademarks

Each party exclusively owns all right, title and interest in and to their respective Trademarks. Neither party may remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the products or services of the party owning the Trademark. All goodwill from the use of such Trademarks will inure solely to the benefit of the party owning the Trademark.

5 Confidentiality

5.1 Definition

By virtue of this Agreement, the parties may have access to each other’s Confidential Information. “Confidential Information,” as used in this Agreement, means any written, machine-reproducible and/or visual materials that are Partner labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure, and any information of any nature described in this Agreement as confidential. Visibly Confidential Information includes, without limitation, the Visibly User Data, Vision Services and any Software whether in source or executable code, documentation, nonpublic financial information, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the Vision Services or the Software. Partner Confidential Information includes, without limitation, Partner Patient Data.

The terms of the Service Agreement (excluding these terms to the extent provided via URL) shall be deemed the Confidential Information of both parties and neither party shall disclose such information except to such party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers that have a reasonable need to know such information, provided that any such third parties shall, before they may access such information, either (a) execute a binding agreement to keep such information confidential or (b) be subject to a professional obligation to maintain the confidentiality of such information.

5.2 Exclusions

Confidential Information shall not include information that the receiving party can demonstrate: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.

5.3 Use and Nondisclosure

During the Term and for a period of three (3) years after expiration or termination of this Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, and in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information, if not legally barred, the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.

6 Representations and Warranties

6.1 Mutual Representations and Warranties

Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (b) the execution, delivery and performance of this Agreement are within the corporate powers of such party and have been duly authorized by all necessary corporate action on the part of such party, and constitute a valid and binding agreement of such party; and (c) this Agreement will not breach any agreement between the party and any third party or violate any Applicable Laws.

6.2 Partner Representations and Warranties

Partner represents and warrants to Visibly that: (a) it has all rights, power and authority that are necessary for its collection, use and sharing of the Partner Patient Data as contemplated by this Agreement; (b) Partner’s use and provision of Partner Patient Data to Visibly, and its use of vision test results pursuant to this Agreement, will not breach any agreement between Partner and any third party or violate any Applicable Laws and (c) it has made or will make all disclosures and has secured or will secure all requisite consents required under the Applicable Laws from Partner Patients, and other individuals as applicable, necessary for it to provide the Partner Patient Data to Visibly and for Visibly to use such Partner Patient Data in connection with its provision of the Vision Services and any other services provided under this Agreement.

6.3 Visibly Representations and Warranties

Visibly warrants to Partner that: (a) the Vision Services will meet the requirements set forth in the Service Agreement; (b) its use and provision of Visibly User Data to Partner pursuant to this Agreement will not breach any agreement between Visibly and any third party or violate any Applicable Laws and (c) it has made or will make all disclosures and has secured or will secure all requisite consents required under the Applicable Laws from Visibly Users and other individuals as applicable, necessary for it to collect, use and process the Visibly User Data and share such Visibly User Data with Partner in connection with its provision of the Vision Services and any other services provided under this Agreement. The sole and exclusive remedy for any breach of the warranty set forth in this Section 6.3 (a) will be as set forth in Section 2 of the Service Agreement.

6.4 Visibly Disclaimer

EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 6.1 THROUGH 6.3, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE OR THE VISION SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.3, VISIBLY DISCLAIMS ANY WARRANTY THAT THE VISION SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. VISIBLY FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE VISION SERVICES AS TO MERCHANT ABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. VISIBLY FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM VISIBLY OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

6.5 Alexander Optical Disclaimer

EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 6.1 THROUGH 6.3, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE OR THE VISION SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.3, Alexander optical DISCLAIMS ANY WARRANTY THAT THE VISION SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. alexander optical corporation FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE VISION SERVICES AS TO MERCHANT ABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. alexander optical corporation FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM VISIBLY OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

7 Indemnification

7.1 Visibly Indemnity

Subject to Section 7.4, Visibly will defend, indemnify and hold Partner harmless from and against any damages, costs and expenses (including reasonable attorneys' fees and other professional fees) awarded against Partner in a final non-appealable judgment or that are agreed to in settlement, to the extent based on a third-party claim: (i) that the Vision Services, as provided by Visibly, infringe any U.S. patent or copyright or misappropriate the trade secret of any third party, or (ii) arising out of Visibly's breach of its representations and warranties under Section 6.3(b) or (c).

7.2 Partner Indemnity

Partner will defend, indemnify and hold Visibly harmless from and against any damages, costs and expenses (including reasonable attorneys' fees and other professional fees) awarded against Visibly in a final non-appealable judgment or that are agreed to in settlement to the extent based on a third-party claim that arises out of Partner’s breach of its representations and warranties.

7.3 Procedure

The indemnifying party is obligated to indemnify the indemnified party provided that the indemnified party: (a) promptly notifies indemnifying party in writing of any such claim; (b) grants indemnifying party sole control of the defense and settlement of the claim; and (c) provides indemnifying party, at indemnifying party’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. The indemnifying party will not settle any claim that involves a remedy other than payment without the indemnified party’s prior written consent, which may not be unreasonably withheld or delayed. The indemnified party has the right to retain counsel, at its expense, to participate in the defense or settlement of any claim. The indemnifying party will not be liable for any settlement or compromise that indemnified party enters into without the indemnifying party’s prior written consent.

7.4 Injunction

If Partner’s use of the Vision Services is, or in Visibly’s opinion is likely to be, enjoined due to the type of claim specified in Section 7.1, then Visibly will use commercially reasonable efforts to: (i) replace or modify the Vision Services to make it non-infringing and of equivalent functionality; or (ii) procure for Partner the right to continue using the Vision Services under the terms of this Agreement.

7.5 Sole Remedy

THE FOREGOING PROVISIONS OF THIS SECTION 7 SET FORTH VISIBLY’S SOLE AND EXCLUSIVE OBLIGATIONS, AND PARTNER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND BY USE OF THE VISION SERVICES.

7.6 Subscriber Indemnity

Subscriber will defend, indemnify and hold Visibly and Alexander Optical Corporation harmless from and against any damages, costs and expenses (including reasonable attorneys' fees and other professional fees) awarded against Visibly or Alexander Optical Corporation in a final non-appealable judgment or that are agreed to in settlement to the extent based on a third-party claim that arises out of Subscriber's breach of its representations and warranties.

8 Limitation of Liability

IN NO EVENT WILL VISIBLY OR ALEXANDER OPTICAL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENTOR THE USE, OPERATION OR PERFORMANCE OF THE VISION SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY,OR OTHERWISE, AND WHETHER OR NOT VISIBLY OR ALEXANDER OPTICAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. VISIBLY'S AND ALEXANDER OPTICAL'S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE TO VISIBLY AND ALEXANDER OPTICAL BY SUBSCRIBER DURING THE TWELVE MONTHS PRECEDING THE CLAIM.

9 Compliance With Law

Each Party agrees to use commercially reasonable efforts to comply in all material respects with all Applicable Laws, including, without limitation, to the extent applicable, HIPAA, HITECH, PHIPA, GDPR any federal and state anti-kickback laws and regulations, any applicable federal and state privacy and data security laws and regulations (“Privacy and Security Laws”) and any rules of professional conduct as well as orders of all courts of law, in each case, pertaining to this Agreement and the performance of its respective obligations hereunder (collectively, the “Legal Requirements”); provided that “Legal Requirements” shall not include any state or provincial laws, statutes, rules or regulations which have been pre-empted by federal law, in which case, such federal law shall apply. Each party will notify the other party if in its opinion, the terms of this Agreement are likely to breach any Legal Requirements, and in which case, the parties will mutually cooperate and modify the provisions that might so violate any Legal Requirement.

10 Term and Termination

10.1 Term

The term of this Agreement is as set forth in Section 3 of the Service Agreement.

10.2 Termination for Cause

Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach; provided that the cure period for any default with respect to payment will be five (5) business days.

10.3 Termination for Insolvency

Subject to Title 11 of the United States Code, or a Division I Proposal or a CCAA filing, if either party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or makes an assignment for the benefit of any creditor, then the other party may terminate this Agreement upon thirty (30) days’ written notice.

10.4 Rights and Obligations Upon Expiration or Termination

Upon expiration or termination of this Agreement, Partner’s and Subscriber's right to access and use the Vision Services provided by Visibly shall immediately terminate, all fees and payments under the Agreement up to the effective date of termination will become immediately due and payable, and each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. Also upon expiration or termination of this Agreement, each party will cease use of the Trademarks of the other party; provided, that each party will: (a) have a reasonable time to remove the other party’s Trademarks from promotional materials; (b) be entitled to exhaust materials printed during the Term that include the other party’s Trademarks; and (c) not be required to remove any such printed materials from circulation.

10.5 Survival

The rights and obligations of Visibly, Partner and Subscriber contained in Sections 4, 5, 6, 7, 8, 9, 10.4, 10.5, and 11 shall survive any expiration or termination of this Agreement.

11 General

11.1 Governing Law

This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of Ontario, without regard to its conflict of law provisions. Subscriber hereby agrees to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.

11.2 Waiver

No amendment to this Agreement will be valid or binding unless set forth in writing and duly executed by both of the Parties hereto. No waiver of any breach of any term or provision of this Agreement will be effective or binding unless made in writing and signed by the Party purporting to give the same and, unless otherwise provided in the written waiver, will be limited to the specific breach waived.

11.3 Notices

All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent to the signers of the Service Agreement at the addresses listed in the Service Agreement or delivered in person. The notices shall be deemed to have been given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; or (c) three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email.

11.4 Severability

In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect

11.5 Force Majeure

Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

11.6 Compliance with Laws

Each party agrees to comply with all Applicable Laws with respect to its activities hereunder, including, but not limited to, PHIPA, GDPR, HIPAA, HITECH and any export laws and regulations of the United States and Canada.

11.7 Relationship Between the Parties

Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

11.8 Assignment/Successors

Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s written consent, which consent will not be unreasonably withheld or delayed. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.

11.9 Entire Agreement

These Terms and Conditions together with the Service Agreement, Business Associate Agreement, and all exhibits hereto constitute the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, 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.

11.10 Non-Exclusive Remedies

Except as expressly set forth in the Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.

11.11 Equitable Relief

Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.

11.12 No Third Party Beneficiaries

This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

11.13 Counterparts

This Agreement may be executed in counterparts, each of shall constitute an original, and all of which shall constitute one and the same instrument.

11.14 Headings

The headings in this Agreement are for the convenience of reference only and have no legal effect.

12 Definitions

“Applicable Laws” means all applicable laws, rules and regulations, including, without limitation, HIPAA, HITECH, any federal and state anti-kickback laws and regulations, and any federal and state privacy and data security laws and regulations that are applicable to a party.

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, and all regulations promulgated thereunder, as amended from time to time.

“HITECH” means Health Information Technology for Economic and Clinical Health Act, and all regulations promulgated thereunder, as amended from time to time.

“Intellectual Property Rights” means any intellectual property in any jurisdiction throughout the world, including without limitation, any (i) trademarks, service marks, Internet domain names, logos, trade dress, trade names, and any other indicia of source, and all goodwill associated therewith and symbolized thereby; (ii) patents, patent applications and patent disclosures and inventions and discoveries (whether patentable or unpatentable); (iii) trade secrets and know-how (including rights in any ideas, research and development information, drawings, specifications, designs, plans, proposals and related information); (iv) copyrights and copyrightable works, including rights in software (source code and object code) and software systems, data, databases and related items, such as documentation; and (v) registrations and applications for any of the foregoing.

““Visibly User” means any person who signs up for the Vision Services provided by Visibly. For clarity, all Partner Patients who sign up for Vision Services will also be considered Visibly Users after the successful sign up process.

“Visibly User Data” means all data and information relating to Visibly Users collected or processed by Visibly during user registration and through the Vision Services. For clarity, Visibly User Data also includes data relating to Partner Patients who become Visibly Users (by signing up for the Vision Services) collected or processed by Visibly, including without limitation, vision test results.

“Partner Patients” means patients of Partner to whom Partner has actively promoted, marketed, offered, or recommended Visibly’s Vision Services.

“Partner Patient Data” means all data and information about the Partner Patients collected by Partner, and input or submitted into the Vision Services by Partner.

“Visibly Vision Services” means the online vision testing services provided by Visibly.

“Software” means any Visibly or third-party software used by Visibly to provide the Vision Services.

“Term” means the term of the Agreement as defined in Section 10.

“Trademarks” means a party’s trademarks, service marks, trade names, or logos used to identify that party or its products and services.

“PHIPA” means the HThe Personal Health Information Protection Act, also known as PHIPA, is Ontario legislation established in November 2004. PHIPA is one of two components of the Health Information Protection Act 2004. And all regulations promulgated thereunder, as amended from time to time.

"GDPR" means The General Data Protection Regulation 2016/679. It is a regulation in EU law on data protection and privacy in the European Union and the European Economic Area. And all regulations promulgated thereunder, as amended from time to time.

"Subscriber" means the corporation who subscribed to the vision services offered by Alexander Optical Corporation.

"Subscriber Patients" means the user of Alexander Optical Corporation's vision services including but not limited to the use of Visibly's vision-services.

"Subscriber Patient Data" means all data and information about the Subscriber Patients collected by Partner and Visibly, and input or submitted into the Vision Services by Subscriber Patients. “Vision Services” means the online vision testing services provided by Visibly.

“Alexander Optical Corporation Vision Services” means the triage service and administrative services offered by Alexander Optical Corporation.

"Clinic" refers to a health care practice owned and operated by licensed health care practitioners.