Legal

Effective date: July 5, 2023

Welcome to Avation. Please read on to learn the rules and restrictions that govern your use of our website(s), services and applications, including the Vivally System mobile app (collectively, the “Services”), and any of our products, including any Prescription Device (defined below), Vivally Patient Kit, Controller, Garment, Charging Station, and other accessories available for purchase through our website (each, a “Product”). Your purchase of any Products will also be governed by any other terms made available by us to you during the sales process. If you have any questions, comments, or concerns regarding these terms, the Services, or the Products, please contact us at:

Email: customercare@avation.com Phone: 1-888-972-5694 Address: 1375 Perry St, Suite 13-150 Columbus, OH 43201

These Terms of Use (the “Terms”) are a binding contract between you and AVATION MEDICAL, INC. (“Avation,” “we” and “us”). Your use of the Products and Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Products and Services. These Terms include the provisions in this document as well as those in the Privacy Policy (Privacy Policy), any other relevant policies, any consent or authorization you sign in connection with your use of the Services, and any other accompanying documentation provided or terms and conditions of sale entered into between you and us for the sale of any Products, including, but not limited to, any instructions for use, indications for use, contraindications, product warnings and safety statements provided in the user guide or packaging for a Product (“Product Labeling”). Your use of or participation in certain Products and Services may also be subject to additional policies, rules and/or conditions (including the Product Labeling) (collectively, “Additional Terms”), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Products and Services, you agree to also comply with these Additional Terms.

Please read these Terms carefully. They cover important information about the Products and Services provided to you and any charges, taxes, and fees for the Products and Services. These Terms include information about future changes to these terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR PRODUCTS AND SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE PRODUCTS AND SERVICES IN ANY MANNER.

ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

Will these Terms ever change?

We are constantly trying to improve our Products and Services, so these Terms may need to change along with our Products and Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at www.avation.com, send you an email, and/or notify you by some other means.

If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Products and Services. If you use the Products and Services in any way after a change to the Terms is effective, that means you agree to all of the changes.

Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.

What about my privacy?

Avation takes the privacy of its users very seriously. For the current Avation Privacy Policy, please click here (Privacy Policy).

Children’s Online Privacy Protection Act

The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 13 years of age; if you are a child under 13 years of age, please do not attempt to register for or otherwise use the Products or Services or send us any personal information. If we learn we have collected personal information from a child under 13 years of age, we will delete that information as quickly as possible. If you believe that a child under 13 years of age may have provided us personal information, please contact us at customercare@avation.com.

Health Insurance Portability & Accountability Act

Some professionals you may interact with in connection with our Products and Services qualify as “health care providers” under the Health Insurance Portability & Accountability Act (“Health Care Providers” and “HIPAA”, respectively). Such Health Care Providers may require you to review and acknowledge their specific HIPAA Notice of Privacy Practices; any such terms are between you and such Health Care Provider. We encourage you to review our Privacy Policy (Privacy Policy), which provides additional information on how Avation may use your Personal Data (as defined in the Privacy Policy) and any communications between you and such Health Care Provider.

What are the basics of using Avation’s Products and Services?

You may be required to sign up for an account, select a password and user name (“Avation User ID”), and provide us with certain information or data, such as your contact information or diagnostic code. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Avation User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission. You represent and warrant that you are an individual of legal age to form a binding contract. If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization’s or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).

You will only use the Products and Services you obtain for your own internal, personal, non-commercial use (as it pertains to the Prescription Device Users (defined below) only), and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Products and Services is prohibited by applicable laws, then you aren’t authorized to use the Products and Services. We can’t and won’t be responsible for your using the Products and Services in a way that breaks the law.

Certain Products require a prescription from a Health Care Provider (“Prescription Device”), and such Prescription Devices may only be used by the person for whom the prescription was issued (the “Prescription Device User”). Use of such Prescription Device (and other Products and Services offered by Avation) may require you to download an application on an iOS or Android internet-enabled mobile device (such application, the “User App”). You are responsible for obtaining, maintaining and paying for all hardware, software and telecommunications and other services necessary for the use of the Products and/or Services you purchase.

You will not share your Avation User ID, account or password with anyone, and you must protect the security of your Avation User ID, account, password and any other access tools or credentials. You are responsible for any activity associated with your Avation User ID and account, including if you share any information or data generated by, or created in connection with, your use of a Product (“User Data”) with others. This data will be shared with your prescribing clinic and healthcare provider. Our collection, storage and transmission of User Data and any other information that you provide to Avation through Products and Services is governed by our Privacy Policy.

No Medical Advice; Not for Emergencies

Avation does not offer medical advice or diagnoses, or engage in the practice of medicine. Our Products and Services are not intended to be a substitute for professional medical advice, diagnosis, or other treatments recommended by a Health Care Provider and are offered for the purposes described in the Product Labeling only. The Products and Services are not intended to be, and must not be taken to be, the practice of medicine, nursing, pharmacy or other healthcare advice by Avation.

The Products and Services are not meant to diagnose, detect, prevent, holistically treat or cure any conditions – only your medical professional can determine the right course of treatment for you and determine what is safe, appropriate and effective based on your needs. Avation does not verify the accuracy of any User Data. Reliance on any information provided by Avation or in connection with the Products and Services is solely at your own risk. You are solely responsible for any decisions or actions you take based on the information and materials available through the Products and Services. You acknowledge, understand and agree that your use of the Services, Content (defined below) and Products is entirely at your own risk.

If you are a Prescription Device User, you acknowledge that although you may be prescribed the Product and/or Services by a Health Care Provider, the provision of such Products and Services by Avation does not create a medical professional/patient relationship between you and Avation or between you and any other individual or entity, and does not constitute an opinion, medical advice, or diagnosis by Avation.

Health Care Providers and patients should always obtain applicable diagnostic information from appropriate trusted sources. Health Care Providers should always exercise their independent judgment and discretion for patient diagnosis and treatment and should never withhold professional medical advice or delay in providing it because of something they have read in connection with our Products and Services.

THE PRODUCTS AND SERVICES SHOULD NEVER BE USED AS A SUBSTITUTE FOR EMERGENCY CARE. IF YOU HAVE A MEDICAL EMERGENCY, YOU SHOULD SEEK EMERGENCY TREATMENT AT THE NEAREST EMERGENCY ROOM OR DIAL 911.

What about messaging?

As part of the Products and Services, you may receive communications through the Services, including messages that Avation sends you (for example, via email). When you sign up for the Services, you will receive a welcome message and instructions on how to stop receiving messages.

Are there restrictions in how I can use the Products and Services?

You represent, warrant, and agree that you will not provide or contribute anything, including any Content (as that term is defined below), to the Services, or otherwise use or interact with the Products and Services, in a manner that:

• (a) infringes or violates the intellectual property rights or any other rights of anyone else (including Avation);
• (b) violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Avation;
• (c) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
• (d) jeopardizes the security of your Avation User ID, account or anyone else’s (such as allowing someone else to log in to the Services as you);
• (e) attempts, in any manner, to obtain the password, account, or other security information from any other user;
• (f) violates the security of any computer network, or cracks any passwords or security encryption codes;
• (g) runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
• (h) “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
• (i) copies or stores any significant portion of the Content; or
• (j) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Products or Services.

A violation of any of the foregoing is grounds for termination of your right to use or access the Services.

What are my rights in the Services?

The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Avation’s) rights.

Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that Avation owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.

Who is responsible for what I see and do on the Services?

Any information, User Data or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information User Data and Content at your own risk, and we aren’t liable for any errors or omissions in that information, or in the User Data or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content and User Data or what actions you may take as a result of having been exposed to such information, and you hereby release us from all liability for you having acquired or not acquired Content and User Data through the Products and Services. We can’t guarantee the identity of any users with whom you interact in using the Products and Services and are not responsible for which users gain access to the Product and Services.

You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.

The Services may contain links or connections to third-party websites or services that are not owned or controlled by Avation. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that Avation is not responsible for such risks.

Avation has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Products and Services, including any Health Care Providers. In addition, Avation will not and cannot monitor, verify, censor or edit the content of any third-party site, provider or service. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third-party website or service that you visit or utilize. By using the Products and Services, you release and hold us harmless from any and all liability arising from your use of any third-party website, provider (including any Health Care Providers) or service.

Your interactions with any organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Avation shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.

If there is a dispute between participants on this site or in connection with the Products and Services (including between any Health Care Provider and Prescription Device User), or between users and any third party, you agree that Avation is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Avation, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Products and Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

Will Avation ever change the Products or Services?

We’re always trying to improve our Products and Services, so they may change over time. We may suspend or discontinue any part of the Products and Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Products and Services. We’ll try to give you notice when we make a material change to the Products and Services that would adversely affect you, but this isn’t always practical. We reserve the right to remove any Content from the Services at any time and to discontinue the Products and Services for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.

Do the Products and Services cost anything?

If you were prescribed a Prescription Device and signed up for an account with Avation, you may view the prices for certain Products here (Product Info), and you may choose to purchase certain Products through that page. Avation may limit or cancel quantities of Products purchased, and it reserves the right to refuse any order. In the event Avation needs to make a change to an order, it will attempt to notify you by contacting the email address, billing address, and/or phone number provided at the time the order was made. The prices displayed are quoted in U.S. currency and are valid only in the United States. Prices are subject to change at any time. If applicable, sales tax will be determined by the shipping address of the order and will automatically be added to the order. Avation is required by law to apply sales tax to orders to certain states. Purchased Products will be shipped to the shipping address of the order. Information about our shipping rates and return policy can all be found on our website (Return policy). Any payment terms presented to you in the process of purchasing Products are deemed part of these Terms.

• (a) Billing. We use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your account on the Services (your “Billing Account”). The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. Currently, we use Square, Inc. and Square Capital, LLC as our Payment Processor. You can access Square’s Terms of Service at <https://squareup.com/us/en/legal/general/ua> and their Privacy Policy at <https://squareup.com/us/en/legal/general/privacy-no-account>. We are not responsible for any error by, or other acts or omissions of, the Payment Processor. By choosing to purchase Products, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any such Products in accordance with the applicable payment terms, and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.
• (b) Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
• (c) Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE THROUGH THE SERVICES (Product Info).
• (d) Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges.
• (e) Installment Payments. Avation may provide you with the ability to pay for Products and Services in installments (“Installment Pay Program”). By selecting the Installment Pay Program option, you agree to pay Avation, through the Payment Processor, all installment charges in accordance with the applicable payment terms (including in any terms presented to you in the process of purchasing Products and Services), and you authorize Avation, through such Payment Processor, to charge your Billing Account. FAILURE TO PAY ANY AMOUNTS DUE UNDER AN INSTALLMENT PAY PROGRAM (INCLUDING AS A RESULT OF INCORRECT OR CANCELED PAYMENT METHODS) MAY RESULT IN LOSS OF ACCESS TO OR USE OF AVATION’S PRODUCTS AND SERVICES.

What if I want to stop using the Products and Services?

You’re free to do that at any time by ceasing use of the Products and Services. You can also contact us at customercare@avation.com. Please refer to our Privacy Policy (Privacy Policy), as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.

Avation is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including your breach of these Terms. Avation has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.

Account termination may result in destruction of any Content and User Data associated with your account, so keep that in mind before you decide to terminate your account.

If you have deleted your account by mistake, contact us immediately at customercare@avation.com – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.

Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.

What about Mobile Applications?

You acknowledge and agree that the availability of our mobile application is dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms of Use, the more restrictive or conflicting terms and conditions in these Terms of Use apply.

I use the Avation App available via the Apple App Store – should I know anything about that?

These Terms apply to your use of all the Services, including our iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:

• (a) Both you and Avation acknowledge that the Terms are concluded between you and Avation only, and not with Apple, and that Apple is not responsible for the Application or the Content;
• (b) The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
• (c) You will only use the Application in connection with an Apple device that you own or control;
• (d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
• (e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
• (f) You acknowledge and agree that Avation, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
• (g) You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Avation, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
• (h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
• (i) Both you and Avation acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
• (j) Both you and Avation acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.

What else do I need to know?

Warranty Disclaimer

Except as explicitly set forth in the Limited Warranty available here (Warranty policy), which is incorporated into these Terms, Avation and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Avation and all such parties together, the “Avation Parties”) make no representations or warranties concerning the Products and Services, including without limitation regarding any Content or User Data contained in or accessed through the Products and Services, and the Avation Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Products and Services. The Avation Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services including, without limitation, any Products. Except as explicitly set forth in the previous paragraph, Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS-IS” and without any warranty of any kind from the Avation Parties or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES, PRODUCTS, USER DATA AND CONTENT ARE PROVIDED BY AVATION (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND EXCEPT AS LISTED EXPLICITLY IN THE WARRANT POLICY (Warranty policy), EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, OR THAT USE OF THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL MEET YOUR REQUIREMENTS. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. AVATION DOES NOT MAKE ANY WARRANTY WITH RESPECT TO THE RESULTS OBTAINED FROM USE OF THE PRODUCTS AND SERVICES. NO PRODUCTS OR SERVICES CAN OR SHOULD BE CONSTRUED AS MEDICAL ADVICE OF ANY KIND.

Limitation of Liability

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE AVATION PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED (\$100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO AVATION IN CONNECTION WITH THE PRODUCTS AND SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnity

You agree to indemnify and hold the Avation Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Products and Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).

Assignment

You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Avation’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.

Choice of Law

These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Delaware, without regard to the conflicts of laws provisions thereof.

Arbitration Agreement.

Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Avation and limits the manner in which you can seek relief from Avation. Both you and Avation acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Avation’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.

(a) Arbitration Rules; Applicability of Arbitration Agreement.

The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Columbus, Ohio. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.

(b) Costs of Arbitration.

The Rules will govern payment of all arbitration fees. Avation will pay all arbitration fees for claims less than seventy-five thousand (\$75,000) dollars. Avation will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

(c) Small Claims Court; Infringement.

Either you or Avation may assert claims, if they qualify, in small claims court in Columbus, Ohio or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

(d) Waiver of Jury Trial.

YOU AND AVATION WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Avation are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Avation over whether to vacate or enforce an arbitration award, YOU AND AVATION WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.

(e) Waiver of Class or Consolidated Actions.

ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Avation is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.

(f) Opt-out.

You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 1375 Perry St, Suite 13-150 Columbus, OH 43201 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.

(g) Exclusive Venue.

If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Avation to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Avation agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Columbus, Ohio, or the federal district in which that county falls.

(h) Severability.

If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Avation.

Miscellaneous.

You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Products and Services, provided that the Avation may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Avation agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Avation, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Avation, and you do not have any authority of any kind to bind Avation in any respect whatsoever.

Except as expressly set forth in the sections above regarding the Apple Application and the arbitration agreement, you and Avation agree there are no third-party beneficiaries intended under these Terms.