Update: Oct 15th, 2021

AOS Subscription Terms

These subscription terms (“Terms”) form a legal agreement between you (“you”) and Advanced Ophthalmic Systems Limited trading as Advanced Ophthalmic Systems or AOS, a company registered in England and Wales (company number 12874125) whose registered office is at The Old Rectory, Church Street, Weybridge, Surrey, KT13 8DE (referred to as “we” “us” and “our”). These Terms govern the Contract (as defined below) between you and us for the supply of the Software (as defined below).

These Terms explain the basis on which you are permitted to use:

• the Software (as defined below);
• any data supplied within the Software; and
• any Documentation (as defined below).

PLEASE READ CAREFULLY BEFORE AGREEING YOUR SUBSCRIPTION. BY CONFIRMING YOUR SUBSCRIPTION AND ACTIVATING AND ACCESSING THE SOFTWARE, YOU CONFIRM THAT YOU AGREE TO THESE TERMS WHICH WILL BIND YOU AND YOUR AUTHORISED USERS (AS DEFINED BELOW).

IF YOU DO NOT AGREE TO THESE TERMS, WE WILL NOT PROVIDE YOU WITH ACCESS TO THE SOFTWARE AND DOCUMENTATION. IN THIS CASE, YOU MAY NOT ACCESS ANY SOFTWARE, MOBILE APPLICATION OR DOCUMENTATON FROM THIS WEBSITE.

YOU SHOULD PRINT A COPY OF THESE TERMS FOR FUTURE REFERENCE.

• DEFINITIONS AND INTERPRETATION.

• Clause and paragraph headings shall not affect the interpretation of the Contract.
• A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
• A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
• Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
• Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
• A reference to a statute or statutory provision is a reference to it as it is in force as at the Effective Date.
• A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of you entering into the Contract under that statute or statutory provision.
• A reference to writing or written includes faxes but not e-mail.
• References to clauses are to the clauses of the Contract.

• BASIS OF CONTRACT, SUBSCRIPTION AND PAYMENT
  • These Terms shall apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
  • There are two types of User Subscription, Basic and Professional. The initial User Subscription will be Professional, with the option to add additional Basic or Professional Users. You acknowledge that the Basic User Subscription shall have certain restrictions compared to the Professional User Subscription.
  • Your acceptance of the subscription takes place when we accept it by sending you an email or by way of pop-up on our website (“Order Confirmation”) at which point and on which date (“Effective Date”) the Contract between us and you shall come into existence.
  • You shall pay the Subscription Fees in accordance with the agreed payment timetable set out in our Order Confirmation or invoice.
  • If we have not received payment on the due date, and without prejudice to our other rights and remedies:
    • we may, without liability to you, disable your password, account and access to the Software and/Documentation; or
    • interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% (four percent) over the then current base lending rate of Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
  • You shall also be responsible for paying all sales, use, property, excise and other taxes applicable to the Subscription Fees which we shall itemise during the purchase process.

• SUBSCRIPTION TERMS AND RESTRICTIONS.
  • Subject to purchasing the User Subscriptions, and agreeing to abide by these Terms, we hereby grant you a non-exclusive, non-transferable right, without the right to grant sublicences to permit the Authorised Users to use the Software and the Documentations during the Subscription Term solely for your internal business operations.
  • Each username and password login shall only be used by one individual.
  • In the event that you or any Authorised User loses its login required to access the Software, please contact our IT support team who will be able to assist.
  • You shall:
    • supervise and control use of the Software and ensure that the Software is used (a) only by your Authorised Users who shall be healthcare professionals (b) for use only in relation to healthcare and (c) in accordance with these Terms;
    • undertake that the maximum number of Authorised Users shall not exceed the number of User Subscriptions you have purchased;
    • ensure that each Authorised User keep a secure password for their use of the Software, which shall be changed frequently and that each Authorised User shall keep this password confidential;
    • ensure that our copyright notice is not removed from the Software which is accessed and used by your Authorised Users;
    • maintain accurate and up to date records of your Authorised Users; and
    • comply with all applicable technology control or export laws and regulations.
  • You and your Authorised Users shall not:
    • use multiple logins under the same user account;
    • access, store, distribute or transmit any Viruses or any material during the course of your use of the Software that:
      • is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
      • facilitates illegal activity;
      • depicts sexually explicit images;
      • promotes unlawful violence;
      • is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
      • is otherwise illegal or causes damage or injury to any person or property;

and we reserve the right, without liability or prejudice to our other rights to the you, to disable your access to any material that breaches the provisions of this clause.

• sublicense, rent, lease, lend, host, transfer, merge, adapt, translate, vary, modify or assign the Software without our prior written consent;
• make alterations to, or modifications of, the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
• except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Terms:
  • attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
  • attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
• attempt to obtain, or assist third parties in obtaining, access to the Software or the Documentation;
• access all or any part of the Software and Documentation in order to build a product or service which competes with the Software
• attempt to unlock or bypass any initialisation system, encryption methods or copy protection devices in the Software;
• introduce or permit the introduction of, any Virus into our network and information systems; or
• use the Software in a manner that violates any applicable laws or regulations.

• We supply the Software and the Documentation for your internal business use only and you agree not to use the Software or Documentation for any resale purposes.
• The rights granted under this clause 0 shall apply to updates in the same manner as in respect of the Software, unless we provide other terms along with the updates.

• SOFTWARE
  • We shall, during the Subscription Term, provide access to the Software and make available the Documentation to you on and subject to these Terms.
  • We shall use commercially reasonable endeavours to make the Software available 24 hours a day, seven days a week, except for:
    • planned maintenance carried out during the maintenance window of 20.00 pm to 23.00 pm UK time; and
    • unscheduled maintenance performed outside Normal Business Hours, provided that we have used reasonable endeavours to give you at least 6 Normal Business Hours’ notice in advance.
  • We will provide you with our standard customer support services during Normal Business Hours.
  • We may, from time to time, revise or update the Software including the App and the Documentation.

• INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
  • You acknowledge and agree that we and/or our licensors own all intellectual property rights in the Software and the Documentation. Except as expressly stated herein, these Terms do not grant you any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software and Documentation.
  • You acknowledge that:
    • you have no right to have access to the Software in source code form; and
    • you have no rights in the Software or the Documentation other than the rights accorded to you under the Contract.
  • Any breach of this clause 0 shall be the basis for immediate termination of your access to the Software as granted in clause 2.0.
  • You acknowledge that the Software contains highly confidential and proprietary information belonging to us and that we will be irreparably damaged if the security of the Software is breached. You therefore agree that we are entitled to injunctive relief (without giving security for your costs) and damages as may be determined by arbitration accordance with clause 1.
  • We confirm that we have all rights in relation to the Software and the Documentation that are necessary to grant all the rights we purport to grant under, and in accordance with, the Contract.

• CUSTOMER DATA
  • You shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
  • In the event of any loss or damage to Customer Data, your sole and exclusive remedy against us shall be for us to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by us. In such event, please notify us without undue delay so we can endeavour to restore your Customer Data at the soonest opportunity. We do not guarantee that we will be able to retrieve your Customer Data.
  • We shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
  • We shall, in providing the Software and Documentation, comply with our Privacy Policy relating to the privacy and security of the Customer Data available at https://aos-hub.com/privacy-policy/ and as such document may be amended from time to time by us in our sole discretion.
  • Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 0 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
  • All personal data will be stored by us using a system which is compliant with UK Data Protection Legislation and in compliance with HIPAA requirements.
  • We confirm that any patient data will be pseudonymised and cannot be attributed to a specific individual.
  • You will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to us for the duration and purposes of the Contract so that we may lawfully use, process and transfer the personal data in accordance with the Contract on your behalf. In particular, you confirm that it shall be your responsibility, or the responsibility of your Authorised Users, as applicable, to obtain explicit consent from your patients in relation to the processing of their personal data.
  • You acknowledge that we are entitled to share/sell or otherwise distribute the de-identified personal data as may be required for any research or other purposes as we shall in our sole discretion see fit, but at no such time shall any of this data be identifiable or attributed to a specific individual.
  • Both parties acknowledge that if we process any personal data on your behalf when performing our obligations under the Contract and providing the Software and Documentation to you, you are the controller and we are the processor for the purposes of the Data Protection Legislation.
  • Without prejudice to the generality of clause 5, we shall, in relation to any personal data processed in connection with the provisions of Software and Documentation and the Contract:
    • process that personal data only on your documented written instructions unless we are required by the laws of any member of the European Union or by the laws of the European Union applicable us and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (“Applicable Laws”).
    • comply with reasonable instructions notified to us in advance by you with respect to the processing of the personal data;
    • assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
    • notify you without undue delay on becoming aware of a personal data breach;
    • at your written direction, delete or return personal data and copies thereof to you on termination of the Subscription Term unless required by Applicable Law to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and
    • maintain complete and accurate records and information to demonstrate its compliance with this clause 0 and immediately inform you if, in our opinion an instruction infringes the Data Protection Legislation.
  • We may transfer and store any personal data outside of the European Economic Area and the United Kingdom, however we will not do so unless the following conditions are fulfilled:
    • either party has provided appropriate safeguards in relation to the transfer;
    • the data subject has enforceable rights and effective legal remedies; and
    • we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred.
  • Each party shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.
  • You consent to us appointing L2S2 as a third-party processor of personal data under the Contract. We confirm that we have entered or (as the case may be) will enter with the third-party processor a written agreement which is substantially on that third party’s standard terms of business or incorporating terms which are substantially similar to those set out in this clause 0 and in either case which reflects and will continue to reflect the requirements of the Data Protection Legislation. As between you and us, we shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 6.0.
  • Either party may, at any time on not less than 30 days’ notice, revise this clause 0 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to these Terms).

• OUR OBLIGATIONS
  • We undertake that our services in providing the Software and Documentation to you will be performed with reasonable skill and care.
  • This undertaking at clause 1 shall not apply to the extent of any non-conformance which is caused by your use of the Software contrary to the our instructions, or modification or alteration of the Software or Documentation by any party other than us or our duly authorised contractors or agents.
  • The intended use of the Software (excluding the App) is that of a diagnostic support tool in clinical support and aid to be used by qualified professionals. Therefore, results and analysis obtained from the use of the Software are intended as guidelines only and decisions made by the Authorised User shall be based on his/her clinical expertise. We shall accept no liability for any clinical decisions made using the Software, including where it is used for remote triage. You agree to indemnify use for any losses, claims, damages or costs suffered by us in relation to any claim brought by any patient or third party relating to the use of the Software for clinical diagnosis and triage purposes.
  • The Software is a CE approved Class I Medical Device conforming to MEDDEV 93/42/EEC under Rule 12 (or as amended from time to time) and is approved for use in all regions accepting CE marking. The Software is also approved for use in the United States as a Class 1 Medical Device. We do not accept any responsibility for the use of the Software outside these regions, and you agree to the warranties as set out in clause 3 relating to such use.
  • The intended use of the App is to capture media which is transferred to the Authorised User via the Software for analysis.
  • We do not warrant that:
    • the Software will meet your requirements or expectations;
    • the use of the Software will be uninterrupted, timely, secure or error-free;
    • the results obtained from the use of the Software will be effective, accurate or reliable; or
    • the media taken using the App will be clinically valid.
  • We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Software and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
  • The use of the Software is done at your own discretion and risk and on the basis that you will be solely responsible for any damage to your computer system or loss of data that results from such activities. No advice or information, whether oral or written, obtained by you from us our website shall constitute a warranty for the Software.
  • We make no further warranty and disclaim any and all other warranties of any kind or nature whether oral or written, including, but not limited to, warranties of results, performance, merchantability, non-infringement, or fitness for a particular purpose.

• YOUR OBLIGATIONS
  • You shall provide us with:
    • all necessary co-operation in relation to the Contract; and
    • all necessary access to such information as may be required by us;

in order to provide the Software and Documentation to you, including but not limited to Customer Data, security access information and configuration services.

• You shall:
  • without affecting your other obligations under the Contract, comply with all applicable laws and regulations with respect to the Contract;
  • carry out all other responsibilities set out in these Terms in a timely and efficient manner;
  • ensure that the Authorised Users use the Software and the Documentation in accordance with these Terms and shall be responsible for any Authorised User’s breach of these Terms;
  • obtain and maintain all necessary licences, consents, and permissions necessary for us, and our contractors and agents to perform our obligations under the Contract;
  • ensure, at your own expense, that your network and systems comply with the relevant specifications provided by us from time to time; and
  • be, to the extent permitted by law and except as otherwise expressly provided in these Terms, solely responsible for procuring, maintaining and securing your network connections and telecommunications links from your systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet. We will not be liable for any losses suffered by you as a result of your failure to maintain your networks and systems.
• You confirm and warrant to us that you and your Authorised Users have the necessary qualifications, regulatory approvals, licences and/or consent to purchase and use the Software in the country in which you practise. This is your sole responsibility and we will not be liable to the extent that you do not have such qualifications, approvals, licenses or consents, including patent consent to process their personal data.

• LIMITATION OF LIABILITY
  • Except as expressly and specifically provided in the Contract:
    • you assume sole responsibility for results obtained from the use of the Software and the Documentation by you and your Authorised Users, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to you with the Software and Documentation, or any actions taken by the us at your direction; and
    • the Software and the Documentation are provided to you and your Authorised Users on an “as is” basis.
  • You acknowledge that the Software has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software meet your requirements.
  • Nothing in the Contract shall limit or exclude our liability for:
    • death or personal injury resulting from our negligence;
    • fraud or fraudulent misrepresentation; or
    • any other liability that cannot be excluded or limited by English law.
  • In additional to the limitations and exclusions of liability set out elsewhere in this Contract, we shall not in any circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
    • loss of profits, sales, business or revenue;
    • business interruption;
    • loss of actual or anticipated savings;
    • loss or corruption of data or information;
    • loss of business opportunity, goodwill or reputation;
    • any losses caused by a service interruption as a result of a failure of your systems or network; or
    • any indirect, special or consequential loss or damage.
  • Our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
  • These Terms of the Contract set out the full extent of our obligations and liabilities in respect of the supply of the Software and Documentation. Except as expressly stated in these Terms there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation which might otherwise be implied into, or incorporated in, the Contract whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
  • You shall indemnify, defend and hold us and our affiliates’ officers, directors and employees harmless from all claims, action, proceedings, losses, damages, and reasonable costs and expenses arising out of or in connection with:
    • any use of the Software and/or Documentation by your use of your Authorised Users use of the Software/Documentation; and
    • any use of the Software/Documentation by any other person in breach of the Contract.

• TERM AND TERMINATION
  • The Contract shall begin on the Effective Date and shall continue in force for the subscription term as set out in the Order Confirmation until terminated in accordance with this clause 0 or unless terminated by either party giving to the other not less than 30 days’ prior written notice (“Subscription Term”). Where you have purchased an annual subscription the minimum Subscription Term shall be 12 months, and for a monthly subscription the minimum Subscription Term shall be 30 days.
  • Upon termination of the Contract for any reason, we may keep your Customer Data for a minimum of one month in the event you reactivate your account, after which, unless as otherwise set out in these Terms, your account and Customer Data will be deleted.
  • We shall have the right to immediately terminate your use and access to the Software and/or the Documentation if:
    • you or your Authorised Users materially breach any of these Terms and you fail to remedy such breach within 30 days after you have been notified in writing to do so;
    • you fail to pay any amount due under these Terms on the due date for payment;
    • You suspend, or threaten to suspend, payment of your debts are unable to pay your debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
    • you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or your make a proposal for or enter into any compromise or arrangement with your creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
    • you apply to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
    • a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up your company other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of your company;
    • an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over you;
    • the holder of a qualifying floating charge over your assets of that other party has become entitled to appoint or has appointed an administrative receiver;
    • a person becomes entitled to appoint a receiver over your assets of the other party or a receiver is appointed over your asset;
    • any event occurs, or proceeding is taken, with respect to you in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 3.3 to 10.3.9 (inclusive);
  • Upon termination in accordance with clause 1 or 10.3:
    • all rights granted to you under these Terms shall cease;
    • you shall immediately cease all activities authorised under these Terms including use of the Software and/ or the Documentation and shall procure that your Authorised Users immediately do the same;
    • your access to the Software and App shall be immediately terminated;
    • each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
    • you shall immediately pay us any Subscription Fees outstanding as at the date of termination;
    • we may destroy or otherwise dispose of any of the Customer Data in our possession in accordance with clause 11.5, but we reserve the right to retain certain data in accordance with clause 6.9and/or as set out our Privacy Policy; and
    • any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination shall not be affected or prejudiced.
  • You shall, at our request, certify in writing that you have complied with this clause 0.

• ARBITRATION
  • Any dispute arising out of or in connection with the Contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause.
    • The number of arbitrators shall be one.
    • The seat, or legal place, of arbitration shall be London.
  • The language to be used in the arbitral proceedings shall be English.
  • The governing law of the Contract shall be the substantive law of England and Wales.

• GENERAL
  • This Contract shall be binding upon and inure to the benefit of our successors and assigns. You may not assign or otherwise transfer your rights or obligations under the Contract except with our prior written consent.
  • Entire agreement. You and we agree that these Terms contain all of the terms and conditions of the Contract and supersede all proposals, concurrent or prior agreements, oral or written, and all other communications between us relating to the subject matter of the Contract.
  • All amendments to the Contract shall be in writing and signed by both parties. No terms contained in any purchase order issued by you shall form part of the Contract between us and you.
  • Force Majeure. Each party shall be excused from any obligation under the Contract to the extent and for so long as non-fulfilment of such obligation is due to fire, flood, storm, earthquake, epidemic, pandemic, lock-down, strike, war, riot, terrorism, explosion or compliance with any law, order or decree of any court or government agency provided, however, that such non-fulfilment does not exceed 90 days in duration. Notwithstanding the provisions of this clause 4, you shall not be relieved of your obligation to continue paying the monthly instalments of the Subscription Fee on the due dates.
  • If any part of the Contract, or the application thereof, is for any reason held or otherwise found to be unenforceable, it shall be deemed severable and the validity of the remainder of the Contract or the application thereof to other circumstances shall not be affected thereby.
  • Governing law and jurisdiction. The Contract shall be governed by English law and any dispute arising under the Contract shall be referred to arbitration in accordance with clause 1.
  • Export control. You warrant that you will not export or otherwise disclose, directly or indirectly, any technology or software received from us nor allow the technology or software to be disclosed either directly or indirectly, to any destination in contravention of applicable export control laws.
  • Any notice required or permitted to be given under the Contract shall be in writing and delivered by hand, or sent by certified mail or email, to the intended recipient. In our case the notice should be sent to us by email to info@aos-hub.com and in your case it should be sent to the address we have recorded for you.

A notice sent by certified mail shall be deemed delivered on the second working day after sending and a notice sent by email shall be deemed delivered on the next working day after sending (provided it is supported by a valid server delivery receipt).

• A waiver of any breach or default under the Contract shall not constitute a waiver of any other or subsequent breach or default. Failure or delay by either party to enforce compliance with any provision of the Contract shall not constitute a waiver of such provision.