Terms of Use

Welcome to the TearLab Corporation, Inc. (“TearLab”) web site at [www.TearLab.com] (or successor URLs) (collectively, the “Site”). The following Terms of Use for the Site is a legal contract between you, either an individual visitor or user of at least 18 years of age, and TearLab regarding your use of the Site. Visitors and users of the Site are referred to individually as “User” and collectively as “Users”.

PLEASE READ CAREFULLY THE FOLLOWING TERMS OF USE. BY ACCESSING, BROWSING, OR USING THE SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS OF USE”).

1. Eligibility.

THE SITE IS NOT AVAILABLE TO PERSONS UNDER THE AGE OF 18 OR TO ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE BY TEARLAB. By using the Site, you represent that you are at least 18 years of age and have not been previously suspended or removed from the Site by TearLab.

2. Privacy Policy.

Your privacy is important to TearLab. TearLab’s Privacy Policy is hereby incorporated into these Terms of Use by reference. Please read this notice carefully for information relating to TearLab’s collection, use, and disclosure of your personal information.

3. Modification of these Terms.

TearLab reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms of Use at any time. Please check these Terms of Use periodically for changes. Your continued use of the Site after the posting of changes constitutes your binding acceptance of such changes. For any material changes to these Terms of Use, such amended terms will automatically be effective thirty (30) days after they are initially posted on the Site.

4. Ownership; Proprietary Rights.

The Site is owned and operated by TearLab. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, press releases, news releases, and all other elements of the Site provided by TearLab (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained on the Site are the property of TearLab or its affiliates and/or third-party licensors. TearLab hereby grants you a nontransferable, nonexclusive license to use the information and other Materials contained on the Site solely for your own personal non-commercial use and information. You may download and/or print a single copy of any of the Materials contained herein for your personal use; however, you shall not otherwise reproduce, display, publish, distribute, sell, license, modify, publicly perform, transmit, publish, edit, adapt, create derivative works from, or incorporate the Materials into other documents, websites, or publications or otherwise make unauthorized use of the Materials. TearLab reserves the right to modify, in part or in whole, or temporarily or permanently discontinue or remove any Materials from the Site, at any time without notice to you, and without liability to you. All trademarks, logos and service marks displayed on the Site, whether registered or unregistered, are owned exclusively by TearLab or its affiliates and/or other third parties. Nothing contained in these Terms of Use, nor your use of the Materials, shall be construed as granting you any license or right in or to any trademark, logo, or service mark. TearLab reserves all rights not expressly granted in this Terms of Use.

5. No Medical Advice.

BY USING THE SITE, YOU ACKNOWLEDGE THAT TEARLAB IS PROVIDING THE MATERIALS FOR INFORMATIONAL PURPOSES ONLY AND THAT THE MATERIALS ARE NOT PROVIDED TO YOU FOR THE PURPOSE OF GIVING YOU MEDICAL ADVICE OR INSTRUCTION ON THE APPROPRIATE USE OF PRODUCTS PRODUCED OR SUPPLIED BY TEARLAB, ITS AFFILIATES OR ITS PARTNERS, LICENSORS OR SUPPLIERS. YOU SHOULD NOT RELY ON THE MATERIALS IN THE SITE IN DECIDING ON A TREATMENT PLAN OR IN EVALUATING ANY OTHER MEDICAL ADVICE REGARDING ANY DISEASE OR MEDICAL CONDITION, AND TEARLAB, ITS AFFILIATES AND ITS PARTNERS, LICENSORS AND SUPPLIERS STRONGLY URGE THAT YOU CONSULT WITH A PHYSICIAN IN CONNECTION WITH ANY AND ALL TREATMENT OPTIONS THAT MAY BE AVAILABLE TO YOU. THE DEVICES DESCRIBED ON THIS SITE ARE SUBJECT TO FEDERAL LAW GOVERNING THE USE AND SALE OF SUCH DEVICES, AND ARE NOT APPROVED FOR SALE OR CLINICAL USE IN THE UNITED STATES. NOTHING IN THIS SITE IS INTENDED TO CONSTITUTE A CLAIM OR INDICATION FOR CLINICAL USES OF THE DEVICES DESCRIBED. THE CLINICAL INDICATIONS AND RECOMMENDED USES OF THE DEVICES DESCRIBED ON THIS SITE ARE LIMITED SOLELY AND EXCLUSIVELY TO THOSE EXPRESSLY STATED IN THE INDICATIONS FOR USE FOR SUCH DEVICES AS APPROVED BY FEDERAL REGULATORY AUTHORITIES.

6. Prohibited Conduct.

BY USING THE SITE YOU AGREE NOT TO:

6.1 use the Site for any purposes other than to access information offered by TearLab;

6.2 rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials;

6.3 impersonate any person or entity, falsely claim an affiliation with any person or entity, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Site, or perform any other similar fraudulent activity;

6.4 delete the copyright or other proprietary rights on the Site;

6.5 use the Site for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;

6.6 remove, circumvent, disable, damage or otherwise interfere with security-related features of the Site, features that prevent or restrict use or copying of any content accessible through the Site, or features that enforce limitations on the use of the Site;

6.7 reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; or

6.8 intentionally interfere with or damage operation of the Site or any User’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.

7. Third-Party Sites, Products and Services; Links.

The Site may include links or references to other external web sites or services solely as a convenience to Users (“Reference Sites”). Links on Reference Sites may lead to resources located on servers maintained by third parties over whom TearLab has no control. TearLab does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES ON OR AVAILABLE THROUGH REFERENCE SITES IS SOLELY AT YOUR OWN RISK.

8. Termination.

8.1 TearLab. You agree that TearLab, in its sole discretion, for any or no reason, and without penalty, may terminate your use of and access to the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Site or portion thereof may be effected without prior notice, and you agree that TearLab will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies TearLab may have at law or in equity.

8.2 You. Your only remedy with respect to any dissatisfaction with (i) the Site, (ii) any term of these Terms of Use, (iii) any policy or practice of TearLab in operating the Site, or (iv) any content or information transmitted through the Site, is to discontinue use of any and all parts of the Site.

9. Indemnification.

You agree to indemnify, save, and hold TearLab, its affiliates, contractors, employees, agents and its partners, licensors and suppliers harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Site, any violation by you of these Terms of Use, or any breach of the representations, warranties, and covenants made by you herein. TearLab reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify TearLab, and you agree to cooperate with TearLab’s defense of these claims. TearLab will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

10. Disclaimers; No Warranties, No Medical Advice.

10.1 No Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TEARLAB, AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TEARLAB OR THROUGH THE SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION ‎10 THE TERM TEARLAB INCLUDES TEARLAB’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, AND SUBCONTRACTORS.

10.2 Forward Looking Statements. THE SITE MAY CONTAIN FORWARD-LOOKING STATEMENTS. THESE STATEMENTS RELATE TO FUTURE EVENTS OR THE FUTURE PERFORMANCE OF TEARLAB. TEARLAB HAS ATTEMPTED TO IDENTIFY THESE STATEMENTS BY TERMINOLOGY INCLUDING “ANTICIPATE,” “BELIEVE,” “CAN,” “CONTINUE,” “COULD,” “ESTIMATE,” “EXPECT,” “INTEND,” “MAY,” “PLAN,” “POTENTIAL,” “PREDICT,” “SHOULD,” OR “WILL” OR THE NEGATIVE OF SUCH TERMINOLOGY OR OTHER COMPARABLE TERMINOLOGY. SPECIFICALLY, STATEMENTS CONCERNING CLINICAL TRIAL TIMELINES AND EXPECTATIONS REGARDING CLINICAL TRIAL DESIGN ARE FORWARD-LOOKING STATEMENTS. THESE STATEMENTS ARE ONLY PREDICTIONS AND INVOLVE KNOWN AND UNKNOWN RISKS, UNCERTAINTIES, AND OTHER FACTORS. THE INFORMATION IN SUCH DISCUSSIONS COVERS CERTAIN RISKS, UNCERTAINTIES, AND POSSIBLE INACCURATE ASSUMPTIONS THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THE EXPECTED AND HISTORICAL RESULTS. UNDUE RELIANCE SHOULD NOT BE PLACED ON FORWARD-LOOKING STATEMENTS, WHICH SPEAK ONLY AS OF THE DATE THEY ARE MADE. TEARLAB UNDERTAKES NO OBLIGATION TO UPDATE PUBLICLY ANY FORWARD-LOOKING STATEMENTS TO REFLECT NEW INFORMATION, EVENTS, OR CIRCUMSTANCES AFTER THE DATE THEY WERE MADE, OR TO REFLECT THE OCCURRENCE OF UNANTICIPATED EVENTS.

11. Limitation of Liability and Damages.

11.1 Limitation of Liability. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL TEARLAB OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR PARTNERS, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ON ANY OTHER LEGAL THEORY ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THAT RESULT FROM YOUR USE OF OR YOUR INABILITY TO USE THE SITE OR ANY REFERENCE SITES OR ANY MATERIALS CONTAINED ON THIS SITE, OR ANY OTHER INTERACTIONS WITH TEARLAB, EVEN IF TEARLAB OR A TEARLAB AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL TEARLAB OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR PARTNERS, LICENSORS OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR YOUR USE OF THE SITE OR YOUR INTERACTION WITH OTHER SITE USERS, EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SITE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.

11.2 Consumer End Users (Outside of the USA). This Section ‎11.2 applies only to Users residing and using the Site outside of the United States. The limitations or exclusions of warranties and liability contained in these Terms of Use do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods for solely personal use otherwise than in the course of business outside of the U.S.A. The limitations or exclusions of warranties, remedies, or liability contained in theses Terms of Use apply to you to only the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.

12. Miscellaneous.

These Terms of Use constitute the entire agreement between you and TearLab and govern your use of the Site, superseding any prior agreements between you and TearLab (including, but not limited to, any prior versions of the Terms of Use) and any prior representations by TearLab. These Terms of Use shall be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of law principles. You agree that any action at law or in equity arising out of or relating to these Terms of Use or the Websites shall be filed only in the state or federal courts in and for San Diego County, California and you hereby consent and submit to the personal and exclusive jurisdiction and venue of such courts for the purposes of litigating any such action. The failure of TearLab to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision. If any provision of the Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Use remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action brought against TearLab and its affiliates, contractors, employees, agents, or partners, licensors or suppliers, arising out of or related to use of the Site or the Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section headings and titles in these Terms of Use are for convenience only and have no legal or contractual effect.

Effective Date: March 11, 2009