End User License Agreement and Terms of Service

This End User License Agreement and Terms of Service (“EULA”) is a binding contract between you and Visual Notes LLC (“Visual Notes”, “VNotes”, “us”, “we”, or “our”) governing your use of the Visual Notes mobile application that Visual Notes, or a third party service provider, makes available for download (the “App”), the related website located at https://www.VisualNotes.app (the “Website”) and any other online properties owned or controlled by or on behalf of Visual Notes (collectively with the App and Website, the “Service” ).

Your access to and use of the Service is conditioned upon your acceptance of and compliance with this EULA. This EULA applies to all visitors, users, subscribers and others who wish to access or use the Service.

By installing, accessing or otherwise using the Service you agree that you have read, understood and agree to be bound by this EULA. If you do not agree to the terms of this EULA, then you do not have permission to access the Service.

Material Terms

As provided in greater detail in this EULA (and without limiting the express language of this EULA), you acknowledge the following:

The Service is licensed, not sold, to you, and you may use the Service only as set forth in this EULA;
The use of the Service may be subject to separate third-party terms of service and fees, including, without limitation, your internet or mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
You consent to the collection, use, and disclosure of your personally identifiable information in accordance with Visual Notes’s Privacy Policy available at https://www.VisualNotes.app/privacy-policy (“Privacy Policy”);
We provide the App to you on an “as is” basis without warranties of any kind and Visual Notes’s liability to you is limited;
Disputes arising between you and Visual Notes will be resolved by binding arbitration. By accepting this EULA, as provided in greater detail in section 11 below, you and Visual Notes are each waiving the right to a trial by jury or to participate in a class action;

Section 1. General Terms and Conditions.

(a) Changes to this EULA. You understand and agree that we may change this EULA at any time without prior notice. The revised EULA will become effective at the time of posting unless specified otherwise. Any use of the Service after the effective date will constitute your acceptance of such revised EULA. If you find any change to this EULA or the Service unacceptable, you are no longer authorized to use the Service and your sole remedy is to stop accessing, browsing, and otherwise using the Service. (b) Privacy Policy. Your access to and use of the Service is also subject to Visual Notes’ Privacy Policy, the terms and conditions of which are incorporated herein by reference. (c) Eligibility. The Service is not for persons under the age of 18 or for any users suspended or removed from the Service by Visual Notes. When you create an account with us, you guarantee that you are above the age of 18, and that the information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account with Visual Notes.

Section 2. The Service.

(a) Description. The Service provides digital management of safety documentation for the construction industry. (b) Mobile Services. The Service will be accessible via your computer connecting to the Internet, cable modem, DSL modem, a mobile phone, tablet, or other wireless device (collectively, “Connection Services”). Your Carrier’s normal messaging, data, and other rates and fees will apply to your use of the Connection Services. In addition, downloading, installing, or using certain Connection Services may be prohibited or restricted by your Carrier, and not all Connection Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your Carrier to determine if the Connection Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Connection Services, and how much they will cost you. Section 3. Registration. (a) Log-In Credentials. While you may always browse the public-facing portions of the Service without registering with us, in order to enjoy the full benefits of the Service, you must download the App and register an account with us (an “Account”). (b) Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You may not share the credentials for your Account with any third party. You agree to notify Visual Notes immediately at info@VisualNotes.app if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. Visual Notes will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Visual Notes of such unauthorized use or loss of your credentials. (c) Accuracy of Information. When creating an Account, you will provide true, accurate, current, and complete information to Visual Notes. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this EULA, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of Visual Notes, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Visual Notes may terminate your Account immediately without notice and without any liability. Visual Notes reserves the right to refuse Service, terminate accounts, remove or edit content, or cancel orders in our sole discretion. (d) Communications. By creating an Account with us, you agree to subscribe to newsletters, marketing or promotional materials and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link provided at www.VisualNotes.app. (e) International Users. The Service is being offered only in the USA and is controlled and operated by Visual Notes from our offices within the USA with technological support from outside the USA. If you access the Service from a location outside the USA, you are responsible for compliance with all local laws. You agree that you will not use the Content accessed through the Service in any country or in any manner prohibited by any applicable laws, restrictions or regulations Section 4. Subscriptions and Payment. (a) Initial Subscription Payment. To enjoy the full benefits of the Service, you must purchase a subscription to the Service, which we may offer for a stated subscription fee and any applicable taxes and service fees upon enrollment, unless your membership starts with a free trial, as detailed below. (b) Free Trials. If your Service starts with a free trial period, the duration of which is specified during enrollment, WE, OR A THIRD PARTY PAYMENT PROCESSOR, WILL BILL YOUR DESIGNATED PAYMENT METHOD FOR THE SUBSCRIPTION FEE AT THE END OF THE FREE TRIAL PERIOD, unless you cancel prior to the end of the free trial period. By providing your payment details when enrolling in the free trial, you agree that Visual Notes, or a third party payment processor, may charge the subscription fee to your designated payment method upon conclusion of the free trial period. Free trials are only available to first-time subscribers. Visual Notes reserves the right, in its sole discretion, to determine your free trial eligibility. (c) Automatically Renewable Subscriptions. By purchasing a subscription to the Service, you agree that, upon expiration of the initial subscription term, your subscription will automatically renew for successive periods of the same duration as the initial subscription unless and until you cancel your subscription. (d) Cancellation. You may cancel your subscription to the Service at any time, after which Visual Notes will not automatically renew your subscription. PLEASE NOTE THAT NO REFUNDS WILL BE ISSUED UPON CANCELLATION. Please contact info@VisualNotes.app to cancel your subscription. (e) Recurring Charges. YOU AUTHORIZE VISUAL NOTES, OR A THIRD PARTY PAYMENT PROCESSER, TO CHARGE YOUR ACCOUNT USING THE PAYMENT METHOD ON FILE FOR YOU TO PAY FOR ANY RENEWAL SUBSCRIPTION. You will be billed for the same subscription plan (or the most similar subscription plan, if your prior plan is no longer available) at the then-current applicable subscription price plus any applicable taxes. We, or a third party payment processor, will process payment for any renewal subscription using the same billing cycle as your current subscription. Additional terms and conditions may apply upon renewal, and subscription fees may change at any time, to the fullest extent permitted under applicable law. (f) No Refunds. PAYMENTS ARE NON-REFUNDABLE. THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. You are only eligible to cancel your subscription without incurring any payment obligation during your free trial period (if any), after which no refunds will be issued. Following any cancellation, however, you will continue to have access to the service through the end of your current billing period. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our members ("Credits"). The amount and form of such Credits, and the decision to provide them, are at our sole and absolute discretion. (g) Price Changes. Visual Notes reserves the right to adjust pricing at any time. At the end of any promotion, Visual Notes may, at its sole discretion, revert a member’s price per period to the current standard retail pricing for that membership type. Visual Notes may also discontinue certain pricing promotions at any time at its sole discretion. Section 5. Intellectual Property Rights. (a) License. Subject to your complete and ongoing compliance with this Agreement, Visual Notes hereby grants you a personal, limited, revocable, non-transferable license to access and use the Service. Visual Notes reserves all rights not expressly granted to you. (b) Content. Except for User Content, the content that Visual Notes provides to end users on or through the Service may be protected by copyright or other intellectual property rights and owned by Visual Notes or its third party licensors (collectively, the “Visual Notes Content”). You may not copy, reproduce, reverse engineer, upload, republish, broadcast, transmit, retransmit, Post (as defined below), modify, create derivative works of, publicly perform, publicly display, use for commercial purpose or distribute any materials from the Service without prior express written permission of the owner of such material or as permitted by the Service’s intended functionalities. Your use of Visual Notes Content must be in compliance with applicable law. Visual Notes reserves all rights on the part of its licensors. (c) Marks. Visual Notes trademarks, service marks, and logos (the “Visual Notes Trademarks”) used and displayed on the Service are Visual Notes’ registered and unregistered trademarks or service marks. You may not use any Visual Notes Trademark as part of a link to or from the Service without Visual Notes’ prior express written consent. You may not remove any Visual Notes Trademarks identifying the ownership or origin of any Visual Notes Content. All goodwill generated from the use of any Visual Notes Trademark will inure solely to Visual Notes’ benefit. Section 6. User Content. (a) Definition. “User Content” means any content that users upload, post or transmit (collectively, “Post”) to or through the Service including, without limitation, any text, comments and other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws, and excludes any and all Visual Notes Content. (b) Screening User Content. Visual Notes offers end users the ability to submit User Content to or transmit User Content through the Service. Visual Notes does not pre-screen any User Content, but reserves the right to remove, disallow, block, or delete any User Content in its sole discretion. Visual Notes does not guarantee the accuracy, integrity, appropriateness, availability, or quality of any User Content, and under no circumstances will Visual Notes be liable in any way for any User Content. (c) Licenses to User Content. While you retain ownership of any rights you may have in your User Content, you hereby grant Visual Notes an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, make available, create derivative works from, retransmit from External Sites, and otherwise exploit and use (collectively, “Use”) all or any part of all User Content you Post to or through the Service by any means and through any media and formats now known or hereafter developed, for the purposes of (i) advertising, marketing, and promoting Visual Notes and the Service; (ii) displaying and sharing your User Content to other users of the Service; and (iii) providing the Service as authorized by this EULA. You further grant Visual Notes a royalty-free license to use your user name or image to identify you as the source of any of your User Content. (d) You Must Have Rights to the Content You Post. You represent and warrant that: (i) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in this EULA; (ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, including, but not limited to, the rights of any person visible in any of your User Content; (iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation, or other amounts or provide any attribution to any third parties; (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party; and (v) the Content does not include in any content that is obscene, defamatory, illegal, deceptive, gambling-related, or hateful, that is impermissible under applicable US law or as decided by Visual Notes in its discretion. You agree to pay all monies owing to any person as a result of your Posting your User Content on the Service. (e) Waiver of Rights to User Content. By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain, or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service. Visual Notes has the right, but not the obligation, to monitor and edit all User Content. (f) Objectionable Content. You agree not to Post any User Content to the Service that is or could be interpreted to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, vulgar, or in violation of any applicable laws (including laws related to speech); or (ii) promoting any product, good, or service, or bigotry, discrimination, hatred, intolerance, racism, or inciting violence (including suicide) (collectively, “Objectionable Content”). The Posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in this EULA may be raised as a defense against such third party claims. If you encounter any Objectionable Content on the Service, then please immediately email info@VisualNotes.app. Visual Notes in its sole discretion may take any actions it deems necessary and/or appropriate against any User who Posts Objectionable Content on the Service. Section 7. Restrictions on Use of the Service. Any unauthorized use of the Service is prohibited. In addition to any other restrictions set forth in this EULA, and without limiting those restrictions, when using the Service, you agree not to: make unauthorized copies or derivative works of any content made available on or through the Service; use any device, software, or routine to interfere or attempt to interfere with the proper working of the Service; attempt to decipher, decompile, disassemble, or reverse engineer any of the software or source code comprising or making up the Service; delete or alter any material Visual Notes or any other person or entity Posts on the Service; frame or link to any of the materials or information available on the Service; alter, deface, mutilate, or otherwise bypass any approved software through which the Service is made available; use any trademarks, service marks, design marks, logos, photographs, or other content belonging to Visual Notes or obtained from the Service; provide any false personal information to Visual Notes; create a new account with Visual Notes, without Visual Notes’s express written consent, if Visual Notes has previously disabled an account of yours; solicit or collect personal information from other users; disclose personal information about a third person on the Service or obtained from the Service without the consent of that person; use the Service to send emails or other communications to persons who have requested that you not send them communications; use the Service, without Visual Notes’s express written consent, for any unauthorized purpose, including transmitting any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, contests, pyramid schemes, surveys, or any other form of solicitation or mass messaging, whether commercial in nature or not; determine the site architecture or extract data or information about usage, individual identities of other users of the Service via use of any network monitoring or discovery software or otherwise; monitor, copy, scan, review, index, mirror, ping or validate the Service via robot, spider, other automatic software or device, process, approach or methodology, manual or otherwise (methods such as web scraping, harvesting, data extraction, data validation or verification are prohibited); transmit any computer virus, worm, defect, trojan horse, or any other item of a destructive nature, or to upload any virus or malicious code; transmit any false, misleading, fraudulent or illegal communications, information or data; access unauthorized information; solicit information from minors or harm or threaten to harm minors; attack, threaten violence, stalk, harass, incite, harm, or intimidate any other user, person or organization, or engage in any other threatening behavior; export or re-export this website or any portion thereof in violation of the export control laws and regulations of the United States of America; violate any applicable federal, state, or local laws or regulations or the terms of this EULA. Section 8. External Sites. The Service may contain links to, or the ability to share information with, third party websites (“External Sites”). Visual Notes does not endorse any External Sites or the content made available on such External Sites. Visual Notes is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You agree that Visual Notes will have no liability to you arising from your use, engagement, exposure to, or interaction with any External Sites. Section 9. Feedback. While we are continually working to develop and evaluate our own product ideas and features, we know we don’t have all the answers. We therefore welcome your feedback, comments, and suggestions. If you choose to contribute by sending Visual Notes any ideas (“Feedback”), then regardless of what your accompanying communication may say, the following terms will apply. Accordingly, by sending Feedback to Visual Notes, you agree that: a. Visual Notes has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason; b. Feedback is provided on a non-confidential basis, and Visual Notes is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and c. You irrevocably grant Visual Notes perpetual and unlimited permission to Use the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified. Section 10. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements. (a) Respect of Third Party Rights. Visual Notes respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our users to do the same. (b) Infringer Policy. Visual Notes’s intellectual property policy is to (i) remove or disable access to material that Visual Notes believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (ii) remove any User Content uploaded to the Service by infringers that Visual Notes believes in good faith infringes upon the intellectual property of a third party. Visual Notes has discretion to terminate the Account of any user after receipt of a single notification of claimed infringement or upon Visual Notes’s own determination. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the Service infringe your copyright, you (or your agent) may send Visual Notes a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked. The notice must include the following information: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed; (ii) Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of such works); (iii) Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Visual Notes to locate the material on the Service; (iv) Your full legal name, address, telephone number, and e-mail address (if available); (v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (c) Counter-notices. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Visual Notes a counter-notice. Notices and counter-notices with respect to the Service should be sent to Visual Notes by e-mail to info@VisualNotes.app. Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA. Visual Notes reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law. (e) Visual Notes Discretion. Upon receipt of such notice as described above, Visual Notes will take whatever action, in its sole discretion, it deems to be appropriate, including removal of the challenged material from the Service. Section 11. Dispute Resolution. (a) General. You and Visual Notes agree that any dispute arising out of or in any way related to this EULA or your use of the App, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA, will be resolved by binding arbitration. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND VISUAL NOTES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. (b) Exceptions. Notwithstanding Section 11(a) above, nothing in this EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim. (c) Arbitrator. Any arbitration between you and Visual Notes will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA, and will be conducted by a single neutral arbitrator and administered by the AAA, or a similar arbitration service selected by the parties, at a location in New York, NY. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. The arbitrator's award shall be final, and judgment may be entered upon it in any court having jurisdiction. In the event that any legal or equitable action, proceeding or arbitration arises out of or concerns this EULA, the prevailing party shall be entitled to recover its costs and reasonable attorney's fees. The parties agree to arbitrate all disputes and claims in regards to this EULA or any disputes arising as a result of this EULA, whether directly or indirectly, including tort claims that are a result of this EULA. The parties agree that the Federal Arbitration Act governs the interpretation and enforcement of this provision. The entire dispute, including the scope and enforceability of this arbitration provision shall be determined by the Arbitrator. This arbitration provision shall survive the termination of this EULA. (d) No Class Actions. YOU AND VISUAL NOTES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Visual Notes agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. (e) Modifications to this Arbitration Provision. Except as otherwise provided in this EULA, if Visual Notes makes any future change to this arbitration provision, then you may reject the change by sending us written notice within 30 days of the change to Visual Notes at info@VisualNotes.app, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Visual Notes. (g) Enforceability. In the event that the agreement to arbitrate provided herein is found to be inapplicable or unenforceable for any reason, then as a condition to your use of the Service we agree that any resulting judicial proceedings will be brought in the federal or state courts of New York, New York, and by your use of Visual Notes, you expressly consent to venue and personal jurisdiction of the courts therein. If Section 11(e) above is found to be unenforceable or if the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void. Section 12. Limitation of Liability and Disclaimer of Warranties. (a) VISUAL NOTES, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “VISUAL NOTES PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE. THE VISUAL NOTES PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION CONVEYED TO ANY USER, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE. (b) THE VISUAL NOTES PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO VISUAL NOTES PARTY WILL BE RESPONSIBLE FOR THOSE COSTS. WE ARE CONSTANTLY UPDATING PRODUCT AND SERVICE OFFERINGS ON THE SERVICE. WE THEREFORE RESERVE THE RIGHT TO CHANGE OR UPDATE INFORMATION AND TO CORRECT ERRORS, INACCURACIES, OR OMISSIONS AT ANY TIME WITHOUT PRIOR NOTICE. WE MAY EXPERIENCE DELAYS IN UPDATING INFORMATION ON THE SERVICE AND IN OUR ADVERTISING ON OTHER WEBSITES. (c) THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE VISUAL NOTES PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. (e) IN NO EVENT WILL ANY VISUAL NOTES PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH VISUAL NOTES PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VISUAL NOTES’S LIABILITY, AND THE LIABILITY OF ANY OTHER VISUAL NOTES PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF THE FEES YOU HAVE PAID US WITHIN THE LAST TWELVE (12) MONTHS AND U.S. $100. Section 13. Third Party Disputes. (a) To the fullest extent permitted by law, any dispute you have with any third party arising out of your use of the service, including, by way of example and not limitation, any carrier, copyright owner, or other user, is directly between you and such third party, and you irrevocably release the Visual Notes Parties from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. (b) The owners of any content licensed to Visual Notes for use on the Service are intended beneficiaries of this EULA and shall have the right to enforce this EULA against you for any unauthorized use of their content in any court of competent jurisdiction. The provisions of Section 11 do not apply to any dispute between you and a third party licensor of content to Visual Notes. Section 14. Indemnification. To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Visual Notes Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of this EULA; (b) your access to, use, or misuse of Visual Notes Content or the Service; or (c) your User Content. Visual Notes will provide notice to you of any such claim, suit, or proceeding. Visual Notes reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting Visual Notes’s defense of such matter at your expense. Section 15. Term and Termination of the EULA. (a) Term. As between you and Visual Notes, the Term of this EULA commences as of your first use of the Service and continues until the termination of this EULA by either you or Visual Notes. (b) Termination. You may terminate this EULA by sending written notification to Visual Notes at info@VisualNotes.app, deleting the App from your mobile device, and terminating all other uses of the Service. Visual Notes reserves the right, in its sole discretion, to restrict, suspend, or terminate this EULA and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this EULA. Visual Notes may further terminate this EULA for any other reason upon ten (10) days’ notice to you using the email address associated with your account credentials. Visual Notes reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability. (c) Survival. Sections 1, 3.b, 5.b, 5.c, 6.d, 6.e, 6.f, 7, 9-11, 14, 15.c, 16-18 and all defined terms used therein will survive the termination of this EULA indefinitely. Section 16. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in the Privacy Policy. Please read the Privacy Policy to learn more about your choices regarding our electronic communications practices. Section17. Miscellaneous. This EULA is governed by the substantive laws of the State of New York without respect to its conflict of law provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in New York County, New York. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Visual Notes as a result of this EULA or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied, or other relationship is created between you and Visual Notes other than pursuant to this EULA. If any provision of this EULA is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this EULA, which will remain in full force and effect. Failure of Visual Notes to act on or enforce any provision of this EULA will not be construed as a waiver of that provision or any other provision in this EULA. No waiver will be effective against Visual Notes unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Visual Notes and you, this EULA constitutes the entire agreement between you and Visual Notes with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. This EULA will inure to the benefit of our successors and assigns. You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of Visual Notes. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App and any Visual Notes Content from your device prior to such disposition. Visual Notes may assign this EULA, including all its rights hereunder, without restriction. Section 18. Open Source Software. The App contains certain open source software. Each item of open source software is subject to its own applicable license terms.